Headlines such as “Justice Ginsburg should retire” appeared in August, when Justice Ruth Bader Ginsburg announced that, although she was fighting a recurring battle with cancer, she had no intention of stepping down from the Supreme Court. Ginsburg’s persistence in remaining on the job, despite her age and illness, drew criticism from conservatives and liberals alike. Nonetheless, her continued service as a justice complied with one of the Supreme Court’s key functions as an institution insulated from democratic whims and was, in and of itself, not unusual.
Some liberals believe Ginsburg should have retired under President Barack Obama so her seat could have been filled with a younger liberal justice. Similarly, some conservatives claimed that Ginsburg was too frail and ought to have stepped down to pave the way for President Trump to appoint a younger conservative justice.
Some have even argued that, due to the illnesses associated with old age, federal judges should no longer have lifetime tenure.
Ironically, the political motivations behind both the liberal and conservative views on this issue strike at the heart of why the service of justices is not limited by age restrictions.
If one adopts the view that the judicial branch of the federal government should work in a manner that at least resembles the way it was designed to work, then it is best to turn to the history of its creation to get a clear picture of its purpose.
In the words of Alexander Hamilton (the founding father of musical acclaim), the Supreme Court was meant to be a separate and independent body that was free from external influences that could affect its decisions. Otherwise, Hamilton says that those influences and “factions” could “poison the fountains of justice.”
This means that, in many ways, the court and the justices were meant to be anti-democratic since their decisions were supposed to be insulated from political pressure and public opinion. Northeastern law professor Michael Meltsner commented on calls to implement age or term limits by explaining that lifetime appointments were “put into the Constitution to preserve the total independence of the judiciary.”
While some may consider an age limit a commonsense approach with few negative consequences, they would be wise to consider the oft-forgotten political pressure that President Franklin Roosevelt exerted in threatening to “pack” the Supreme Court by having Congress pass legislation adding more seats on the court and then appointing justices who would allow his most extreme New Deal policies. The bill capitalized on preexisting public concerns with the age of justices. While it was being debated, Daniel Hemel, assistant professor at the University of Chicago School of Law, points out that “lawmakers introduced constitutional amendments to set a mandatory retirement age for justices of 70 or 75.”
Although it has never been confirmed, after striking down several of Roosevelt’s social programs, the Supreme Court suddenly began upholding the president’s agenda, leading historian William Leuchtenberg to say, “The pressure exerted by the court-packing bill may very likely have been influential.”
Politics in our democratic-republic have never been impartial; to imagine they will ever be is little more than a delusion. Attempts by the legislative or executive branches to meddle with the Supreme Court will create inevitable political incentives that will damage judicial independence.
This brings us back to Ginsburg’s decision to continue in her role on the Supreme Court. Ginsburg, who passed away at age 87, was mentally sound up to the day she died. She was hardly the oldest or the most feeble justice to have served on the Supreme Court. Those titles belong to Justice Oliver Wendell Holmes Jr., who retired just shy of his 91st birthday, and (arguably) Justice Nathan Clifford, who was described as a ”babbling idiot” during his later years on the court.
Ginsburg herself drew parallels between her tenure and that of Justice John Paul Stevens, who retired with dignity at age 90.
While some such as David Garrow, writing for the University of Chicago School of Law Review, may be able to argue for the removal of justices in the case of mental incompetence, no such mental incapacity was evident in Ginsburg.
While some may argue for the removal of justices on the basis of their age, the change would jeopardize the very nature of the Supreme Court as an independent branch of government. Ginsburg was free to retire at any time; her decision to remain on the court was not an argument for age limits but was, instead, a testament to the continued preservation of judicial independence.
Laura Williamson is a political writer and a contributor for Young Voices.
