What Happens if Ruth Bader Ginsburg Remains Too Sick to Work?

(Politico)

In the past two months, Ruth Bader Ginsburg has fractured three ribs and had two cancerous nodules removed from her left lung. She was absent from oral argument last week and will miss this week’s arguments as well. Doctors say they expect her to be back on the bench in February, and until then she will review transcripts from her home and participate in the court’s decision-making remotely. But her return to work has not quieted critics who say that Ginsburg should have retired long ago and that her health issues are the latest evidence that justices should not be allowed to serve for life.

Ginsburg, who is 85, suggested this summer that she intends to serve “at least five more years” on the court. She is far from the first justice to linger on the bench into advanced age. John Paul Stevens retired at 90 in 2010, making him the oldest serving justice since Oliver Wendell Holmes stepped down from the bench two months shy of his 91st birthday in 1932. Stevens’ extended tenure produced significantly less hand-wringing than Ginsburg’s—a contrast partly attributable to Stevens’ hale health but also possibly driven by the gender bias that Ginsburg has battled throughout her career. Yet while the focus on Ginsburg may be out of proportion, the concerns generated by a graying judiciary cannot be blithely dismissed. Fears of judicial gerontocracy have flared at several earlier points in American history, including long before the court had any female members.

The late Antonin Scalia waved off the idea of limiting the terms of justices as “a solution in search of a problem,” but the problem is not an imaginary one: Some justices really have clung to their positions long after their mental faculties have left them. Justice Henry Baldwin remained on the court for nearly a dozen years after his 1832 hospitalization for “incurable lunacy.” One of Justice Nathan Clifford’s colleagues described him as a “babbling idiot” in the final years before his death in 1881. Justice Stephen Field in the mid-1890s and Justice Joseph McKenna in the early to mid-1920s each reportedly spent the end of their tenures in a haze. Read more