2009 Judiciary Act: Part Two

This is my second post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here.

The professors’ second proposal deals with the possibility of Justices staying on the Court when they are no longer capable of performing their duties. This proposal specifies that Justices have a duty to retire when they are no longer able to perform fully the duties of the office held. Recognizing that a Justice might not easily know or admit that the time to retire has come, the proposal also places a duty on the Justice’s colleagues. When an Associate Justice is unable to perform the duties required of the office, the Chief Justice must advise the Associate Justice to retire; the Chief Justice must also report as much to the Judicial Conference. If the Chief Justice is unable to perform his or her duties on the Court, the Associate Justices must report the disability to the Judicial Conference. Upon receiving a report, the Judicial Conference convenes the most Senior Judges of the Courts of Appeals. If those judges determine that a Justice is no longer capable of serving, it must report that to the House Judiciary Committee.

The professors’ proposal responds to a striking aspect of the Constitution: there is no specific provision for removing a judge who is disabled. Article III provides for a judge to continue to serve during “good behavior.” I understand that provision, though, to mirror the impeachment clause (“all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors”). Disability would not, therefore, be an instance of bad behavior. Many state constitutions, by contrast, do provide for the removal of a judge on disability grounds.


The professors’ proposal works by applying pressure at various points on a failing Justice. Such pressure might help a Justice recognize a disability or shame a reluctant Justice into acting. It is notable that the professors assume that sufficient counsel and pressure does not already exist–from colleagues, family members, and close friends.

I wonder which examples the professors have in mind of ailing Justices who remained too long on the Court—so that the proposal offered would have been a suitable remedy. Some commentators have said that Chief Justice Rehnquist, who died in office, should have retired when he became seriously ill. Rehnquist missed oral arguments while undergoing treatment for thyroid cancer, but he continued to work at home, and he voted in some cases he did not hear argued. Under the professors’ approach, did Rehnquist’s physical absence from the Court mean he was no longer fully performing his duties as Chief Justice? And, if so, at which point would the professors’ proposal have led to Rehnquist’s retirement?

Here, some difficulties in the professors’ proposal emerge. There is a great deal of subjectivity involved in deciding when the time to retire has come. A judge might be physically ill but lucid. A judge might be physically fit but mentally failing. People are also naturally optimistic. A judge who falls ill, even very seriously ill, is likely to think that things will improve. The judge’s colleagues are likely to be hopeful. Absences can be temporary; disabilities might pass.

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1 Response

  1. A.W. says:

    I think if a judge is manifestly unable to do his job, it becomes a matter of ethics to stand down. so, in my mind, it is not “good behavior” to hang on when you can’t do the job.

    Of course physically being there is decreasingly important. yesterday i couldn’t be there for one of my company’s meetings. so i called in and was there by phone. big deal.

    And when holographic technology becomes common, we could easily imagine it being like the jedi counsel in star wars, where some are actually there, and several are just holograms in their place. don’t laugh. We already saw Wolf Blitzer and cnn using the technique on election night. sadly, no one was sharp enough to say “help me, Obiwan, you are my only hope!” But humor aside, the day is creeping forward when that bit of science fiction becomes reality.