Today in Supreme Court History: November 12, 1975

11/12/1975: Justice William O. Douglas resigns.

Justice William O. Douglas

Comments

[Frank Drackman]

Oh C'mon "Resigned"??? what resigned? who resigned???Oh, what? What? That? Are you kidding? I didn't resign. What? You took that seriously?

[JoeFromtheBronx]

Alexander Hamilton in Federalist 79 argued that determining when a judge is unable to serve is so subjective that it is likely to be influenced by partisan considerations. He makes an exception for insanity.

The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.

Since then, a common approach here and abroad is term limits and age limits. Not all federal judges who suffered incapacity (see, e.g., Justice Whittaker) would have been addressed by such things. OTOH, many, including Justice Douglas, could have been.

Federal law allows lower court judges in certain situations to be found unfit and to be removed from hearing cases. An elderly judge (in her 90s) has been addressed in the past on this blog with concern that she is not being treated fairly. Others disagree.

(Black and Douglas believed such a procedure was an unconstitutional workaround of the impeachment process.)

The Constitution seems not to allow the removal (at least complete removal) of federal judges who are unable to serve. Mental incapacity or being in a coma is not "bad behavior." OTOH, Hamilton did have that bit about insanity.

The justices in effect decided to negate William O. Douglas's vote after his stroke made him unable to satisfactorily serve. Any case that turned on his vote was postponed. Justice White dissented from that approach. Systems tend to find such workarounds.

A 25A for federal judges might be a good idea. A judicial commission of some sort can be formed to deal with troublesome cases. That can help prevent partisan abuse.

As life spans expand and technology makes it easier for judges to linger on, the old system might be out of date.