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Another Voice: Supreme Court justices should have an age limit

By Gabe Roth

A respected jurist will soon step down from the nation’s top court after nearly three decades in office – but without much fanfare. Millions of dollars will not be spent by political action committees to influence the elected officials who must confirm a replacement. Just before and immediately following the retirement, the court will continue to hear impactful cases from all comers.

If this sounds like a far-fetched scenario, it’s not – at least in Canada. Beverley McLachlin, the chief justice of that nation’s highest court, will step down in December, a few months shy of her 75th birthday.

Here in the U.S., the four Supreme Court justices who have served for at least 20 years, three of them age 78 or older, seem no closer to leaving their jobs today than they were a decade ago, churning out opinions and traveling far and wide at an enviable clip.

While almost no one believes that any of the nine U.S. justices has lost his or her faculties, our high court is only inviting shades of doubt regarding its legitimacy by allowing its most senior members to hold on into their sunset years.

Back in the mid-’70s, colleagues of Justice William O. Douglas would not allow him to cast a tie-breaking vote after he suffered a stroke and declined to retire.
In the late ’80s, Justice Thurgood Marshall would whisper to colleagues during conferences to inquire how Justice William Brennan had voted – and would inevitably “vote with Bill” without a second thought.

Canada’s common-sense judicial retirement provision, on the other hand – justices must step down at age 75 – was implemented in 1927 as a direct result of Parliament’s concern about the superannuated personalities on the bench. One justice, John Idington, was called “86 & senile” in the prime minister’s diary, and another, Louis Davies, was deemed by the justice minister as “no longer in a position to perform his duties.”

In the years since, every state supreme court, save Rhode Island’s, has implemented a judicial term limit or mandatory retirement age provision. The reason behind this commonality is that state and foreign constitutions are invariably newer and easier to amend than the federal one, and we have a different understanding of life expectancy and government service nowadays than we did in 1789.

As the rumor mill churns, our northern neighbors will soon complete a successful transition from one justice to another using the method of succession that the U.S. has established for presidents, Federal Reserve chairmen, SEC commissioners and state supreme court justices, who step down when their terms – and not their time on Earth – come to an end.

The next U.S. justice, then – whether he or she be nominated this month or in 2021 – should agree to retire by date certain. Wouldn’t it be nice to remove the macabre from our judicial selection process?

Gabe Roth is executive director of Fix the Courts, a national nonprofit that advocates for a more open and accountable U.S. Supreme Court.

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