A Constitutional Regency

92px-Ruth_Bader_Ginsburg_official_portraitOn Sunday, Justice Ginsburg told people for the 23rd time that she’s not retiring anytime soon.  Perhaps the press will now start hounding Justice Breyer with these sorts of questions between now and 2015.

This raises a larger point that I’m thinking about as part of the article that I’m writing.  We could be stuck with a disconnect between the political branches (or, at least, the Presidency) and the Court for a long time.  Even assuming that Democrats hold the White House in 2016 (a not trivial assumption), there is nothing sure about any retirements from the conservative side of the Court in this decade.  To serve until 2021, Justices Scalia and Kennedy would need to stay until they are 85.  That is hardly unthinkable. The “Constitution in 2020,” to use that liberal slogan, could end up looking a whole lot like the “Constitution of 2010.”

In monarchies, a regency referred to a period where the king (or queen) was a child, and someone else had to govern until they came of age.  This was always an uncertain time, because nobody knew whether the regent’s policies would be followed when the king (or queen) took over.  I’m kind of wondering if this is the legal equivalent, at least when the Court is closely divided.

 

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5 Responses

  1. Joe says:

    I’m not sure about the comparison. The regent is specifically chosen to govern until the person came to age. Here, there is just an uncertain period of time before new people will be appointed. The lag has implications but not sure about the comparison.

  2. Mike Zimmer says:

    The media should start with an assessment of the quality of the opinions by the different justices. Justice Ginsburg would not be high on the list of the justices with low quality opinions. Justices Scalia and Kennedy would come way before Ginsburg.

  3. David Bernstein says:

    Why exactly is it that everyone is hounding Ginsburg but not Breyer? True, Ginsburg is older, but also true that American women live significantly longer than do American men, on average.

  4. Joe says:

    Breyer is about five years younger & Ginsburg has for a long while seemed more fragile. I don’t know how much longer women live when you take into consideration the subset of people who live past 70, their socioeconomic status, race and so forth. Thurgood Marshall is an example — he had an unhealthy lifestyle and lived a generation earlier and still lived into his 80s.

  5. David says:

    I don’t think it’s an issue between gender and age.. It depends on its capacity to serve the people with transparency and fairness.

    David of Personal injury lawyer Dallas