The recent faux pas by U.S. Supreme Court Justice Ruth Bader Ginsburg underscores what's wrong with the highest court in the land.
For those who missed it, Justice Ginsburg recently publicly excoriated Republican Presidential candidate Donald Trump as a "faker", pointing out that "he really has an ego" and "has no consistency about him." Even a first-year law student knows that public comments like those by a sitting judge are totally inappropriate and undermine the perceived impartiality and credibility of the Court.
So what possessed Ginsburg to violate one of the most fundamental tenets of the judiciary? I suggest that it's because, in some ways, the U.S. Supreme Court is above the law.
Whereas lower court justices must abide by various enforceable codes of conduct, the Supremes are just that: they're supreme and are effectively untouchable. There is no code of ethical conduct and there are no punishments or sanctions for egregious behaviour, short of an impeachment proceeding which has never been successfully employed to date.
Of course, restricting this unrestrained power in any way would require a Constitutional amendment and, given the current polarized state of American politics, it's hard to imagine the two sides coming to any agreement on something as contentious as enforceable ethical guidelines.
What could be proposed with some hope of success, however, is a mandatory retirement age. Here in Canada, Supreme Court justices have to retire at 75, a reasonable limitation by any view. Many jurisdictions both within and without the United States impose an even lower departure age, namely 70.
This is a non-partisan proposal that should earn support from both the left and the right.
Seventy-five would seem to be a reasonable upper limit for the U.S. Supreme Court. Most people who stay healthy and fit are still capable of intellectual rigor and hard work into their early 70s.
Some, of course, are still capable past 75 and into their 80s but the numbers start to decline rapidly after passing the mid-70s threshold. The odds of someone contracting a mentally debilitating condition or experiencing age-related senility increase dramatically.
Justice Ginsburg is 83 years old and, for the most part, appears to be functioning at a high level. I don't know if she is experiencing the onset of senility but the fact that she violated a fundamental precept of judicial independence and impartiality suggests she may have "lost it" for at least that one incident.
Why risk having judges issuing historical precedents when they are not functioning at 100 per cent when it's a simple matter to have them retire before most mental decline commences? This is a non-partisan proposal that should earn support from both the left and the right.
Such a provision would also put an end to the sad instances of justices staying past their best-before date simply to ensure a particular political balance on the Court. Perhaps the saddest example was Justice William O. Douglas, that stalwart of the left wing of the Court, who having suffered a debilitating stroke at age 76 insisted on staying on the bench for another year.
While we're at it, why not impose a minimum age for a Supreme Court appointee? This would ensure a nominee has sufficient legal experience. More importantly, it would put a stop to such partisan appointments as Clarence Thomas who ascended to the Court at age 43 and John Roberts who was appointed Chief Justice at age 50 with a potential 40-year tenure awaiting him and his ideological bent.
A mandatory retirement age would put an end to such abuses. Some may call this ageist but it's no worse than making older drivers take a road test at a certain age to ensure they're not a danger on the road. If we're not going to mandate judicial retirement at 75, the least we could do is implement mandatory IQ testing to minimize the potential damage aging Supreme Court justices could do to the entire country.
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