When justices refuse to retire

By Jeff Jacoby- The Boston Globe - Boston.com - Op-ed - News: "ON JULY 14, Chief Justice William Rehnquist announced that he was not about to retire from the Supreme Court. ''I will continue to perform my duties as chief justice as long as my health permits," he said, adding that he wanted his statement ''to put to rest the speculation and unfounded rumors of my imminent retirement."

That is exactly what it did. For months, Rehnquist's expected departure had been widely discussed. But virtually overnight, the subject was dropped. In the weeks ahead, great quantities of newsprint and air time will be devoted to considering whether John Roberts, the president's choice to succeed Sandra Day O'Connor, belongs on the Supreme Court. But almost nothing will be said about whether Rehnquist does. Because the Constitution provides no retirement age for Supreme Court justices, whether Rehnquist stays or goes is entirely up to him.

Perhaps the 80-year-old chief justice, who is suffering from thyroid cancer, can still do his job. But can he do it well? After surgery and chemotherapy last year, he was too ill to attend oral arguments, or even, it seems, to study the briefs and memos in each case. (He said he would vote only in cases that would otherwise end in a tie.) He walks and speaks with obvious difficulty. He is sick, weak, and old, and it is hard to believe that his physical decline has been unaccompanied by a decline in his abilities as a judge.

And Rehnquist isn't even the court's oldest member. John Paul Stevens, a Ford appointee, is 85. How is he holding up under the pressures of Supreme Court life? Maybe he is the rare octogenarian who hasn't lost anything off his fastball. But he could be sliding into senility, and it would make no difference to his constitutional status. Stevens will remain a high court justice, with all the power that position confers, until he dies or chooses to resign.

The mental collapse of an aging Supreme Court justice may sound like a fanciful Hollywood plot. In fact, the historian David J. Garrow showed in a remarkable survey published in the University of Chicago Law Review in 2000, ''the history of the court is replete with repeated instances of justices casting decisive votes . . . when their colleagues and/or families had serious doubts about their mental capacities."

The problem is a very old one. John Rutledge, who served briefly as chief justice after a recess appointment by President Washington, was so shattered by the death of his wife, a contemporary noted, ''as to be in a great measure deprived of his senses." At least twice during his time on the court he tried to commit suicide by drowning himself.

Fortunately, Rutledge left after just six months. Not so Henry Baldwin, who joined the court in 1830 and less than two years later was clearly mentally ill. He missed the court's entire 1833 term because he had to be hospitalized for ''incurable lunacy"; his colleague Joseph Story described him as ''partially deranged at all times." But there was no way to compel his retirement, and Baldwin remained on the court until his death in 1844.

Over and over the story line has been repeated: A Supreme Court justice suffers serious mental decline but refuses to step down. By the start of the 1880 term, Nathan Clifford had been reduced to ''a babbling idiot," a fellow justice wrote. ''He did not know me or any thing, and though his tongue framed words, there was no sense in them." Joseph McKenna was so far gone, Chief Justice William Howard Taft lamented in 1922, that he ''wrote an opinion deciding the case one way when there had been a unanimous vote the other, including his own." Taft himself stayed on the bench too long. ''I am older and slower and less acute and more confused," he admitted privately in 1929. But he was determined to hang on ''in order to prevent the Bolsheviki from getting control."

Hugo Black once told his clerks that justices who stay in office longer than they should ''impose terrible burdens" on their colleagues. But he didn't take his own advice, refusing to resign even when a stroke had wrecked his memory and ability to concentrate. A stroke debilitated William O. Douglas's mental abilities, too. In his last years on the bench, he addressed people by the wrong names, spoke in non sequiturs, and dozed during oral arguments. Even after finally retiring, he continued to show up at the court, insisting in his dementia that he was still a sitting justice.

Age sometimes brings wisdom, but too often it brings weakness, fatigue, and mental incapacity. Americans would be aghast at an airline that permitted 80-year-old pilots to fly its jets or a hospital whose surgeons were feeble and confused. Shouldn't we at least be concerned about superannuated Supreme Court judges?"