William Rehnquist, the chief justice of the U.S. Supreme Court, announced in October that he had thyroid cancer. John Paul Stevens, the long-serving associate justice, just turned 85. From the outside, it's hard to tell whether they're still able to perform the jobs they hold. But we do have an idea of what the worst-case scenario would look like.
In his last years on the Court, Thurgood Marshall reportedly spent his days telling tales, watching TV, and letting his clerks do the bulk of his work. Slow, feeble, and increasingly deaf, he once embarrassed himself during oral arguments by revealing he didn't realize which side the lawyer he was interrogating represented.
He probably didn't realize it, but he was part of a long Supreme Court tradition. A decade and a half earlier, William O. Douglas closed out his time on the bench by dozing during arguments, addressing people by the wrong names, and speaking in non sequiturs; after his resignation, he continued to show up for work, apparently convinced that he was still on the Court. Joseph McKenna was so incompetent at the end of his term that, in the words of his colleague William Howard Taft, he once "wrote an opinion deciding the case one way when there had been a unanimous vote the other, including his own." Taft stayed on the job a little too long himself: In 1930 Louis Brandeis wrote to Felix Frankfurter that their colleague "had really lost his grip."
This wasn't merely a sad sideshow. In some important cases–notably Bowers v. Hardwick, the infamous 1986 decision that upheld Georgia's sodomy law–an incapacitated judge (in that case, Lewis Powell) actually cast the deciding vote.
These stories, and many others like them, are related in "Mental Decrepitude on the U.S. Supreme Court," a thorough study by the historian David J. Garrow in the Fall 2000 University of Chicago Law Review. Garrow, 52, is best known for his books Bearing the Cross (1987), a Pulitzer-winning biography of Martin Luther King, and Liberty and Sexuality (1994), which explores the background to Roe v. Wade. His article demonstrates in uncomfortable detail that the Supreme Court is an institution not just of laws but of men, and that since the 18th century some of those men have suffered from senility, severe depression, even drug addiction. In the late 1940s, Justice Frank Murphy was hooked on Seconal and then Demerol, and "some of his closest acquaintances were convinced that the Justice was regularly purchasing illegal drugs." He was hospitalized more than once, and during his absence he instructed a colleague to cast his votes for him. In at least one case, "his" position was conjured by committee, with two justices and Murphy's clerk collaborating to invent an opinion for the phantom judge.
This year Garrow wrote "The Brains Behind Blackmun," published in the May/June Legal Affairs. From Justice Harry Blackmun's papers, Garrow uncovered the story of a judge who, in the historian's words, "ceded to his law clerks much greater control over his official work than did any of the other 15 justices from the last half-century whose papers are publicly available." Blackmun wasn't the only justice to use his clerks as a crutch, but he didn't even have the excuse of mental decrepitude: As far as anyone can tell, he was perfectly capable of doing the work he gave his assistants. He just didn't want to.
Reading Garrow's articles, you get the impression of the Court as a closed society with its own customs, its members urging obviously incapable colleagues to retire but closing ranks to protect their own. Managing Editor Jesse Walker spoke with Garrow in March.
Reason: What are some of the reasons people stay on the Court after their faculties begin to fail?
David J. Garrow: I think the No. 1 reason–it's not talked about much, but it's one I found quite visible in Harry Blackmun's papers–is that the justices lead such isolated lives. Almost without exception, the people with whom they are in close touch are, if not unanimously sycophantic, almost wholly uncritical towards the justice him- or herself. That is a quality of Supreme Court life that's harder to articulate than the more obvious ones, of justices convincing themselves that their constitutional insight is indispensable.
Once we understand the present Supreme Court–where each justice is entitled to four law clerks and the Court is annually deciding no more than about 80 full-fledged cases–we have to acknowledge frankly that being a justice is a very pleasant and cushy part-time job. You have some of the smartest people in the country helping you do your work–or, if you so choose, doing your work for you. And the Court today has significantly less work on its platter than it did 25 or 50 years ago, because the docket is completely discretionary. Back in the 1970s, they took around 150 cases a year.
Both with justices past and with at least two present members of the Court–I don't want to use names–there is every indication that they so enjoy the social stature of being a justice that they are loathe to give up the position when the minimal job performance demands can either be met rather easily or handed off.
Reason: What's most striking isn't just how many times the Court has had an incapacitated justice on the bench, but the number of times the problem leaked into the press but then disappeared down the memory hole after the judge left. Why do you think that happens?
Garrow: The great majority of people who write about the Court, both journalists and historians, look up to it in at times a frankly worshipful way. Sad or embarrassing incidents in the Court's history tend to get overlooked or minimized.
It's quite striking to me, as a small example, that in all the coverage of the chief justice's thyroid cancer battle, there's been virtually no mention of his disability in the early '80s, his excessive dependence on pain medication for his longtime back ailment. We had major newspaper stories back then talking about a justice slurring his comments during the argument of cases.
The underlying dynamic applies to more than just decrepitude. We've seen, for example, a dramatic increase over the last 35 or 45 years in the amount of the justices' work that is performed by their law clerks. But both among Supreme Court scholars and among journalists, there's a widely shared mind-set that that's a development that's better not discussed.
The Blackmun material certainly makes me feel that a reduction to two or, even better yet, one clerk would be highly desirable.
Reason: In your research into Blackmun, did anything strike you as particularly egregious?
Garrow: I think what's in there can be divided into two categories. In one–like that memo from Martha Matthews, the clerk in [the 1990 landmark right-to-die decision] Cruzan–Blackmun wasn't telling his clerks what his substantive views were on truly important, famous cases, and the clerks were left searching for direction. And if they weren't given any, they were going off on their own.
The second category is the expressions of overtly partisan sentiments and commentary on how things will affect the presidential election. I think everyone should acknowledge that this is absolutely improper on its face.
Reason: With Rehnquist's current condition, do you think we're facing the prospect of another incapacitated judge?
Garrow: Only a minority of the news coverage has acknowledged that, back in November and December, it appears that the chief justice was not strong or energetic or sharp enough to absorb the necessary materials on all the cases which were argued. The Court itself announced that he would be voting only in cases where his vote would prove decisive. Yet at the same time, the Court continued to pretend that he was participating and voting fully in the certiorari process, whereby every petition that comes in is subject to winning the votes of at least four justices to be heard.
The certiorari petitions are a major part of the Court's weekly work, but there was never any formal indication that the chief justice was not taking part 100 percent in that. But for the Court to simultaneously acknowledge that the chief justice was not capable of reading the materials and voting in all of the argued cases clearly indicated that at a minimum he was too weak physically to do all of the job.
The good news is that since January, as best we can tell, that partial participation has been replaced with a return to full participation.
Reason: You propose a constitutional amendment requiring Supreme Court justices to retire by age 75.
Reason: A lot of the justices who have been problems are younger than 75. Frank Murphy was pretty young when he had his drug trouble.
Garrow: He was under 65. And he's not the only one. Setting a mandatory retirement age, which could be done only by constitutional amendment, is no magic bullet. But the historical record teaches us that it would solve the great majority of problems.
As a practical matter, much as I think it would be desirable for that constitutional amendment to be approved, I know that's not going to happen until another William O. Douglas situation occurs.
Reason: So are you hoping Rehnquist stays on too long, to force the issue?
Garrow: I've never been someone who slows down to look at accidents.?