Hello! Hello! Hello! Welcome to episode 37 of We Don’t Talk About P-word. This week, we continue to explore “What’s the matter with our government?” Over the last two weeks, we have discussed Congress. This week, we are moving on to what I consider the most dangerous branch. That is the judicial.
Back in episode 23, The Unelected, I talk about why the judicial branch is so dangerous. I’ll give you a quick recap. The judicial branch of the federal government is completely unelected. Judges are all appointed by a partisan-motivated executive branch.
Judges are all consented to by a partisan-motivated legislative branch. These unelected federal representatives are not beholden to the People in any way. Only Congress can remove a judge. There has been no effort to curb partisanship in the judicial since 1789.
I have shown that we cannot count on Congress to represent the People. That means we cannot count on nonpartisan representation in the judicial. They don’t need us. All they must do is make their partisan cronies happy. As long as partisan majorities continue to control Congress, they are safe.
It is important that I note that not all judges are bad. I know there are good judges on both sides of the aisle. I would even be willing to bet that most judges do their job without bias, or at least as much as possible. But like those few bad cops, partisan judges make the whole barrel rotten. Until we make some adjustments to the judicial branch, the People’s power is not secure.
The biggest difference between the fixes for the Legislative and the Judicial is the ease of the fix. Again, I say easy here like anything in Washington is easy. But in the grand scheme, the fixes in Congress are easier than those for the judicial. The fix in the House requires the passage of a law. The fix in the Senate requires nothing more than a rule change. The fix in the Judicial would need at least one constitutional amendment.
If you have been following this podcast, you will understand why. We have made attempts to curb partisanship in the other two branches. This came in the form of the twelfth and seventeenth amendments. In 1801, the election of the President and Vice President was separated. This is what gave us presidential tickets. In 1913, Senators were changed to be directly elected by the People of their state. Neither was particularly effective at fighting partisanship, but their necessity was undeniable.
To date, there have been no amendments passed to curb partisanship in the judicial.
It makes sense that a counter to partisanship in the judicial would need an amendment. I am willing to bet it will come as no surprise what I believe is the most important change to the judicial branch.
We must end lifetime appointments to the judiciary. This is especially true of the Supreme Court. Lifetime, unelected arbiters of constitutionality are no better than a king or queen. What the founders avoided in the executive branch; they gave us in the judicial.
Before I show you why, I am going to talk about the amendment our Republic needs. We must revoke the lifetime appointment in Article III, Section I of the Constitution. We should include a service limit as well as an age limit. A good starting point for a discussion is 20 to 25 years and 70 or 75 years of age, respectively. It would not favor one or the other: it would be whichever occurs first. Additionally, the amendment should include a provision for non-impeachable removal. This would include disqualifications due to health, both mental and physical. Currently, a Justice may only be removed for high crimes and misdemeanors.
There are a few other things that the judicial needs. But we will begin with this one, as it would have the greatest impact. Unfortunately, age is a sensitive issue for most. No one wants to admit that they get slower and less acute with age. We are seeing this play out in front of our eyes across government. They are only serving themselves at this point.
No matter who you are, you are not the same person at twenty as you are at seventy. It is a fact of biology. I know this from experience. There was a time when I could sleep for two hours with rocks for a mattress and be fully prepared for the day. These days? If I lay on my arm wrong in bed, I regret it for a week. It is just a fact of life. We get slower, both physically and mentally, as we age. Sure, wealth and privilege can lessen it, but time will eventually catch up to us all.
There is no better showcase of these facts than in the history of the Supreme Court. We are going to discuss mentally impaired Supreme Court Justices throughout our history. I am going to share what I am willing to bet will be a disconcerting number of stories. Please understand that I am only sharing a few to make my point, but there are many more that I’m not sharing. In most cases, it took some time after they retired or died for their impairment to become known. It was often not until biographers dove into the records. The Supreme Court is notorious for protecting its own from the People’s judgment.
That’s even more reason for the People to place further restrictions on them.
Do not mistake this as an irrelevant concern from our past. Since 1990, ten justices have served past the age of 75. Eight have served past the age of eighty. The oldest was ninety. Currently, there is one justice on the bench aged 75. Despite the relative youth of our current bench, it is still a concern. It often takes decades for incapacities to be uncovered. Who knows what we will find out about the Supreme Court over the next ten years?
It is of interest to note that capping their service at twenty years would not be unusual. Of the 116 people who have served on the Supreme Court, the average length of service is only sixteen years. It is those who refuse to give up power that are typically the problems.
Before you start to think that I am bashing older Americans. let’s talk about some of our past Justices. This has nothing to do with age; it is all about democracy.
I’ll start with a quote from Chief Justice of the Supreme Court (1930-41), Charles Hughes. He advocated for mandatory retirement at age seventy.
“It is extraordinary how reluctant aged judges are to retire and to give up their accustomed work.” He further warned us. “…the importance in the Supreme Court of avoiding the risk of having judges who are unable properly to do their work and yet insist on remaining on the bench, is too great to permit chances to be taken.”
We’re going to go back to 1863. I could go back further, as there are quite a few older stories, but I didn’t want to go back too far. I felt like the Civil War was a good break point. That, and I don’t like this guy. Remember the infamous Justice Stephen Field? He was part of the court case that led to corporations claiming the rights of the People. You can hear more about this in episode sixteen, Death Taxes and the Greed of Corporations.
Field served on the Supreme Court from 1863 until 1897. He is the second-longest serving Justice in history. While on the bench, Field had watched three other Justices serve too long.
One had to be asked (by then Chief Justice Salmon Chase) to resign, which he did. One was struck speechless with paralysis and was unable to do court work. He remained on the bench for three years. The last, fellow Justice Samuel Miller said in 1877 that his “mental failure is obvious to all the Court.” Before the term in 1880, he suffered a stroke. Miller said of him when he arrived; “Judge Clifford reached Washington… a babbling idiot… …he did not know me… his tongue framed words there was no sense in them.” He remained on the bench until his death in 1881.
All this is to say Field should have known better. You’ll find that’s a common theme.
The Chief Justice of the time, Melville Fuller, had this to say about Field. “In the early [eighteen] nineties Justice Field’s mind began to fail.” A Fellow Justice described him as a “madman” during 1895 considerations. His principal biographer noted his mental faculties. “During the winter of 1896-97 Field’s mind became noticeably feeble. His questions… indicated… he had no conception of the arguments… he voted on cases and then forgot how he had voted.”
Fuller attempted to persuade him to retire with no success. That was in late 1895. Field would not retire until December of 1897. After his retirement was made public, an embarrassing news story was printed. It detailed the coaching Field had received while on the bench from his fellow Justices.
Interestingly, Field’s replacement would have to be asked to resign more than once. Former President, now Chief Justice, Howard Taft had to stage an intervention to get him to retire. With reluctance, he eventually relented. Taft would later confess “…for two years the situation has been such that we felt it a violation of our duty not to speak earlier.”
If only Taft would have taken his own advice from 1913, where he advocated a 70-year-old retirement age. By late 1929 at 72, Taft’s family had grown concerned about his mental deterioration. He would retire in February of the following year.
The worst offender was Oliver Wendell Holmes. Holmes once wrote, “I reflect on the mistake that I have seen it to be in others to remain on the bench after seventy.” Justice Holmes is one of the most respected people to ever sit on the high court. He is certainly the oldest, retiring in 1932 at the age of 90. Reports of Holmes’ sleeping during conferences started in 1928. In the 1931 session, even the Chief Justice had to admit that he was deteriorating. They feared what it might do to the court’s reputation. Chief Justice Hughes consulted with the other Justices. They agreed and he told Holmes it was time to retire. He did so.
In 1936, there was a push in Congress for an amendment. It would have set mandatory retirement at seventy-five. Unfortunately, partisanship reared its head. Roosevelt (the second one) continued to push his always-doomed, court-packing scheme. An amendment wouldn’t provide his preferred results, and it certainly wouldn’t have been fast. He never lent his support to the amendment, and it died.
The Harvard Law Review published an article in 1938 discussing the issue. Professor Charles Fairman wrote. “Voluntary retirement… is rare indeed… retirement should be… compulsory at… an age as to give promise of a vigorous and effective judiciary…” He further warned, “Where only the judge himself may act, the public interest is not adequately protected.”
It gained traction again following an article by a well-respected lawyer in 1946. Both the New York and American Bar associations agreed with a mandatory retirement. A proposed amendment was popularly passed by the Senate in 1954. It was even voted on by two future presidents, John Kennedy and Lyndon Johnson. Politics reared its ugly head once again. Before the House could vote, control flipped. It was reintroduced in the next congress but never even had a hearing. Why the change of heart?
What else? Racism. In the interim, the Supreme Court ruled on Brown vs. Board of Education. You see, besides retirement age, the amendment included measures to protect the court. Roosevelt’s attempt to meddle with the court had concerned many. They sought to protect them from such tampering in the future. In 1954 the Supreme Court desegregated schools, and just like that... a large group of politicians lost interest in protecting the Supreme Court.
Moving forward now, and we’re getting closer to our own time. Hugo Black, another great, had also commented early in his career on staying on the bench too long. Well, he stayed too long. According to many around him, he stayed about five years too long. By 1971, he was having paranoid delusions of a military coup to take over the United States. He retired late that same year.
In December 1974, 76-year-old Justice William Douglas suffered a stroke. He was unable to return to the bench until late in the term. He was confined to a wheelchair, and by most accounts, he did not look or act well. He was said to be often confused by his surroundings. He regularly didn’t know people and would just stop talking mid-sentence. Less than a month later, he was back in the hospital. When he was there, his votes were inconsistent. Even his friends tried to convince him to retire. He returned for the late term in 1975. Things had not gotten better. They stopped deciding cases where he was the deciding vote. This created a constitutional dilemma that was worked out between the court members. Douglas was hospitalized again and soon after decided to retire. This precipitated another failed push for legislation to remove federal judges.
From there, we will skip a few slipping Justices and arrive in the 1990s. Before his retirement, Justice William Brennan was known to sleep during oral arguments. More serious was another Supreme Court great, Thurgood Marshall. Many claimed he would spend his days telling stories and watching daytime TV. He often seemed uninformed and disengaged. As he aged, he began to lose his hearing which made him reliant on his colleagues. He would often blindly cast his vote with the Chief Justice’s. A case in 1989 brought unwanted attention to his confusion on the bench. In a Summer 1990 interview with NBC’s Sam Donaldson, his irrationality would be put on display for all to see. In March of 1991, he would be the deciding vote to uphold a death penalty conviction. This was something he had denied over 2,000 times in his past opinions. Two months later, he would reverse his decision on the matter. Marshall would retire in October of 1991.
Since Marshall, there have been no legitimate reports of mental decrepitude. Whether this is due to the lack of incidents or the court’s success in covering it up is unknown. It is also irrelevant. If no incidents occurred, great! If they covered it up, then that’s a bigger problem. Either way, we must guard against the undemocratic powers of the unelected branch. This is even more true since there is a long history of age affecting their abilities on the bench. What might we discover over the next decades? What might come out about Justice Ruth Bader Ginsburg? What about Antonin Scalia? Both were well over seventy-five when they passed.
In addition to mandatory retirement, there are a few other adjustments I would like to see made. One involves the number of Justices. Currently, there are nine. The first court had six. Due to partisan shenanigans, the number shrank to five in 1800, but it was repealed before it mattered. During the Civil War, the number increased to ten. After Lincoln’s assassination, it was reduced to seven. In 1869, Congress, happy to see Andrew Johnson go, rewarded President Ulysses Grant with two more. The Supreme Court has been set at nine ever since. We have also mentioned Roosevelt’s attempt to pack the court in the 30s. I didn’t go into it in detail because it was both confusing and blatantly partisan. Also, nothing came of it.
The reasons for the number set have always been somewhat arbitrary. Early on, they based it on the number of circuit courts around the nation. That is no longer considered these days. In the early days, Justices had to serve some time presiding in district courts every year. Today, they perform a more administrative or managerial role in the district courts.
So, what is my proposed solution, you ask? Well, this may sound counterintuitive. To better protect democracy, the number of justices should be increased to ten. I would also accept lowering it to eight. I am advocating for an even number of justices on the Supreme Court. You may be thinking to yourself that an even number would result in more tie votes. First, I doubt it, but more importantly, who cares? This unelected panel of judges has the power to determine Constitutionality. They should be sure. This unelected panel of judges can overturn at least two other court rulings. This unelected panel of judges is too powerful for democracy to thrive.
An even number of judges would fulfill the expectation of democracy: consensus. For the court’s decision to matter, they would have to come to an agreement on a law’s constitutionality. There would be fewer bullying decisions. Partisanship would play less of a role in those decisions. This would create a much more representative high court. If they can’t reach a consensus between an even number, then they aren’t serving democracy. They certainly aren’t serving the People.
These indecisive decisions would also be invaluable to lawmakers. The opinions would provide them with a legal analysis of laws and actions. They could then craft better, more constitutional laws based on these opinions. This would provide a more cooperative atmosphere between the legislative and judicial branches. An even number of Justices and mandatory retirement would facilitate a stronger democracy.
Other things that must be instituted are an ethics code and cameras in the court. A written ethics code is essential to maintaining the integrity of the court. We must know that justices are not receiving bribes, gifts, or vacations. We must know that they are working for the People. We must be able to hear their questions. We must be able to see that they adequately serve the People. Protection of the process is often cited as a reason not to allow cameras. No, not at all. Not providing the People transparency is hurting the process. State courts can protect juries and the justice process. Why are federal courts any less capable?
Throughout our history, it has been proven time and time again. The media cannot always be counted on to publish the truth. We have seen too many instances of the court covering for their colleagues. The press does not report on it, not wanting to embarrass the court. This is contrary to all their stated purposes. The media is supposedly determined to bring the truth to the People. The court is supposed to work for the People. When they are not honest, they are no longer fit for their job.
Here is what makes this “fix” so hard to put in place. An amendment is required to make substantive changes to the court. Some things could be accomplished through legislation, but that also has potential roadblocks. When making laws that affect the Supreme Court, we cannot be sure it lasts. The Supreme Court can declare any law unconstitutional. The only way to protect the court from partisanship is through an amendment.
I often refer to a quote by Thomas Jefferson. In this quote, Jefferson advocates for expiring laws every nineteen years. Though I don’t agree with it in action, I do agree with its sentiment. No one person should affect the American government far beyond their generation. Those that sit for thirty-plus years are affecting multiple generations. The Supreme Court can affect Americans long past their understanding of the times. This is especially true as they sit on the high court, where it is too easy to become detached from the People. During this time, it is too easy to view one’s power as a right instead of a privilege granted by the People.
For most of our history, partisanship has allowed politics to rule the High Court. With a political reset, we can change that. Mandatory retirement ensures they are more responsive to the People and the times. It might even ensure more skilled Justices. Presidents wouldn't pick for longevity and instead pick justices for their experience. Evening the number encourages consensus. With an ethics mandate, we ensure Justices serve the People and not themselves. Cameras would give us firsthand accounts of what takes place during arguments. This would mean less need to rely on the too often unreliable media.
It is important to note that all but fifteen states impose retirement for judges. Two others don't, but they penalize the benefits of those who remain past specific ages. It’s interesting that the federal government chooses not to follow their lead. Especially when they perform the same functions. A former Texas Supreme Court Chief Justice, Robert Calvert, put it plainly in 1971. "There is no sound basis for concluding that state judges age, become tired and grow out-of-touch, but that federal judges do not."
I’d have to agree with Chief Justice Calvert.
This is about more than an age limit and mandatory retirement. This is about democracy. It is about how long one person should have that much power over our government.
For too long, we have been subjected to the whims of unelected, partisan Justices and judges. We must end their lifetime tenures for the betterment of the People. We must ensure they remain in touch with the country over which they preside. We must remind them their power derives from the People. We must demand that the People’s power be protected.
There is only one way to make a difference in this nation. The People must unite. The People must make their voices heard. The People must take their power back, but we can only do that by speaking as one. Wow. How loud that voice could be…
We the People are the power.