The passing of Supreme Court Justice Antonin Scalia is leading to a political maelstrom over who should select the next Supreme Court appointee. Scalia, 79, was one of four members of the high court over the age of 75. The age of the justices has garnered attention after Justice Ruth Bader Ginsburg was seen sleeping during part of the State of the Union address. This has lead some to wonder about the mental cognition of the justices as they age.
University of Pittsburgh Law Professor David Garrow believes the advanced age of many Supreme Court Justices could be a detriment to the welfare of the nation. He recently wrote an op-ed for the LA Times titled, “Four Supreme Court Justices are Older Than 75. Is That a Problem?” Essential Pittsburgh’s Katie Blackley spoke with Garrow to about his perspective and research on the topic.
Garrow believes the issue primarily stems from the lack of oversight for federal justices. He says that throughout history, many judges have relied on their friends and family to tell them when their mental capacities begin to slip. While Garrow believes this is a good practice, he feels more official oversight is needed.
“Ideally what should happen would be a mandatory retirement age, both for Supreme Court Justices and for all federal judges, but that would take a constitutional amendment,” he said. “So it’s unlikely to happen, except unless some tragic situation again occurs.”
In a law article he wrote in 2007, Garrow points to many circumstances where a judge’s advanced age negatively impacted their career. Justice William O’Douglas, who suffered a stroke in the 1970s, refused to resign despite his condition until convinced by extreme pressure.
Beyond mental cognition, Garrow cites the generation gap between judges and the rest of the nation. While most of the American population is around 30, three of the current justices are over 75 years of age.
“They’re from a different generation, a different culture,” he said.
So what is stopping an amendment from being passed? The necessary passage by Congress, says Garrow. Many congressmen are themselves over 70. If they were to impose a mandatory retirement age for justices, the same rule might eventually be applied to themselves.
“So, unfortunately, count me very much a pessimist as to whether anything will be done to address the problem nationwide, or at the Supreme Court itself,” Garrow said.
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