Duke lawprof Paul Carrington, a “veteran observer” of the Supreme Court, argued in a New York Times op-ed that we’ve had at least a couple of justices who held on to their post just a wee bit past their expiration date.
It is said that Supreme Court justices used to direct a junior colleague to notify a dotty justice that it was time to resign. But as the influence of the court expanded in the second half of the 20th century, that practice seemed to disappear. Some justices, even those seriously unfit, have held on to their awesome power and status long beyond what was reasonable. William Rehnquist, who continued to work on cases in 2005 even as he was dying of cancer, is the most recent example. The celebrated Thurgood Marshall, who was 82 when he retired in 1991, was another.
Lucky for Carrington that dotty-dom isn’t limited to any particular philosophical view, though I don’t see why someone dying of cancer can’t think straight or why terminal mumbling is a certain sign of incompetence. Of course, if there was a competency test for holders of “awesome power” in government, I hesitate to think of what that would do to the other two branches of government as well. Thankfully, it wouldn’t apply to the quasi-awesome power of voters.
Having not been anywhere near as observant at the writer, I demur on the subject of who was dotty or incompetent, and note instead a tangential aspect of Carrington’s argument.
One reason justices are able to cling to power is that they have made their jobs relatively easy. For more than 80 years, they have been empowered to choose the cases they decide, and to leave many matters to lower courts without close oversight. When Congress largely eliminated the automatic right to a Supreme Court hearing as part of the Judiciary Act of 1925, it was assured that the court would continue to decide about 300 cases every year. That promise was soon forgotten. The justices are now down to about 75 cases a year. And the vital task of selecting those few cases is substantially delegated to young law clerks who also help write the justices’ opinions.
The reduction in caseload of 300 to 75 has it’s pluses and minuses. While it means that the number of cases reviewed as absolutely minimal, it also limits the amount of damage the Supremes can do in any given term. Given the clarity, scope and decisiveness of decisions recently, some of us wish they would be included in the Skadden sabbatical program. It seems to me that Chief Justice Roberts could really use a year in the south of France. No, really.
But the lines that grabbed me is the one about the “vital task of selecting those few cases is substantially delegated to young law clerks.” Somebody has to go through the thousand upon thousand of cert petitions to handicap which cases get to the Sweet 75. Why not leave the fate of the law in the hands of bunch of kids with this worldly experience of fruit flies?
The Supremes can’t decide it if their child-gatekeepers “ding” it. What are the pressing issues in real life for real people? Certainly 24 year olds know. Mind you, these are the best and the brightest, coming from the tippy-top law schools, with sterling grades and law review editorship feathers in their propeller caps (which makes it very hard for the propellers to spin freely). Yet it’s left to them, by virtue of weighty necessity, to vet the efforts of seasoned advocates to persuade the court that their cause is worthy of review.
What does the legal world look like through the eyes of the privileged few? Do they understand the significance in the gap of legal representation for the poor? Do they feel the sense of humiliation when a police officer takes liberties with a few salient details surrounding a stop that reveals an otherwise good person’s most embarrassing moment? Legal issues span the gamut of human experience. What do 24 year olds know about human experience?
I remember what I thought of myself when I was 24. I was much smarter then. I understood so much more then. I was not inclined to believe that others might disagree with me and not be wrong. It takes a few decent kicks in the teeth to come to the realization that my experience in life wasn’t share by all. I still believed that there was something called “common sense,” and it was whatever I believed it to be. Life at 24 was much clearer than it is now.
Perhaps the privileged few who obtain a Supreme Court clerkship are truly that much better, smarter, more worldly, than the rest of us. After all, so many go on to greatness afterward, though there remains a cause and effect problem that makes a survey somewhat difficult to interpret. When a legal career starts in hallowed halls, chances are slim that the privileged few will spend much time on the street or in the trenches like the rest of us, and will ultimately achieve their greatness with a narrow view of the world. Some might argue that such a wondrous start in the law should prove a hindrance to their breadth of experience, critical to their future growth. Yet it doesn’t seem to work that way at all.
As even a casual Supreme Court observer knows, there are issues surrounding a justice’s retirement that go beyond their being at the top of their game. When you’re one of only nine votes, it matters that your replacement might shift the balance of power in a way that will undo your entire life’s work. I can forgive dotty justice, whether Rehnquist or Marshall, for clinging, both to the job as well as the belief system they reflected.
But it’s the decision-makers without life tenure, with a mere year or two to change the world, who are subject to no scrutiny at all, who scare me. After all, I was the only 24 year old who knew everything. If only I still did.