Justice Ginsburg

Fri Feb 6 04:54:13 PST 2009

I'm not sure I  understand why "[t]here is no formal solution for this 
problem." What's meant by  "formal"? Statutory? Constitutional? Or does "formal 
solution" refer to some  other set of rule-based procedures for resolving these 
and other related  problem. Similarly, why is there "no real solution for the 
comatose  justice"? Certainly, these issues reflect some of the most delicate  
problems of human interactions imaginable.  But does the absence  of "formal" 
or "real" solutions refer to the delicacy of these problems or  statutory or 
constitutional obstacles in attempting to resolve them?  

        As for Rich's  interesting solution, I fervently believe that 
external (to the Court)  interveners are more appropriate than the internal, ad hoc 
remedies of  members of the Court or their families.  Consider also the 
possibility of a  serious stroke along the lines of President Wilson. This might 
enable a family  member to influence the Court in ways I doubt anyone on this List 
would deem  palatable. 

        Finally,  wherein lies the authority of the Court to decide when an 
incapacitated  Justice's vote should or should not apply.  

Bobby

Robert Justin  Lipkin
Distinguished Professor of Law
Widener University School of  Law
Delaware

Ratio Juris
,  Contributor: _  http://ratiojuris.blogspot.com/_ 
(http://ratiojuris.blogspot.com/) 
Essentially Contested  America, Editor-In-Chief 
http://www.essentiallycontestedamerica.org/   

In a message dated 2/5/2009 10:28:04 P.M. Eastern Standard Time,  
rdfrdman at umich.edu writes:

There is  no formal solution for this problem.  But there is a substantial 
history  of the Custic J, or a set of justices, visiting the ailing justice and 
telling  him it's time to go.  That usually works, but sometimes -- Field, 
Douglas  -- not right away.  Even in Douglas's case, the worst in recent memory,  
the delay was only several months; it took an agreement by the justices not 
to  let his vote be decisive in any case.

Obviously the justices may  hesitate to pressure a colleague to retire, and 
presumably they sometimes wait  a longer than optimal time.  But I do believe a 
rather simple solution  would address many cases.  Hughes made his children 
promise to tell him  if he should retire.  I believe others have done something 
similar.   I've proposed that at the beginning of each term each justice -- 
however young  and fit -- designate a committee of one or more people to tell 
him or her if  the time had come.  Each justice could provide the designation  
confidentially to one or more other colleagues.  Obviously the advice of  the 
committee would be non-binding, but the justice would have trouble  ignoring 
it, given that he or she had designated the committee, and given the  
connection the committee would probably not pull the string too quickly.   At the same 
time, given that the committee had been designated for the  purpose, it would 
probably be less hesitate to step in when appropriate than  the judges are 
now.  Adoption of this practice could be accomplished very  easily, by the CJ 
doing it and suggesting that his colleagues do the  same.

There's no real solution for the comatose justice -- unless  perhaps my 
proposal were extended so that the justice effectively wrote out a  retirement 
letter in advance or gave a trusted person power of attorney, but I  don't know 
that this would be wise or legal.  So far as I know this has  never occurred for 
a prolonged period.  Cardozo maybe came closest -- he  was disabled for 
months, but I suppose he could have scrawled his signature on  a retirement letter 
if he were so inclined.  (By the way, I bet he missed  a lot more than 44 
arguments, and so I think did Stone when he got sick in  1936; neither of them had 
served 18 years.  I wonder if Sandy thinks  either of them was guilty of 
narcissism and denial.)  I think Taft was on  the edge of coma when he signed his 
retirement letter, but it didn't much  matter because he died soon after; 
Black and the second Harlan also were near  death when they retired.

Rich Friedman

>At 04:16 PM 2/5/2009,  RJLipkin at aol.com wrote:

Wherein lies the authority  behind these practices? Or are they merely 
practices derived ad hoc?  More importantly, what happens if a Justice has a 
prolonged illness  rendering him or her unable to perform judicial functions, but who 
insists  on remaining on the Court or is in a permanently comatose state 
leaving no  instructions concerning prolonging _(or not) his or her life?  

These seem like a  critically important issue raising problems that cry out 
for comprehensive  legal solutions.

Bobby

Robert Justin  Lipkin
Distinguished Professor of Law
Widener University School of  Law
Delaware

Ratio Juris

_ (http://www.essentiallycontestedamerica.org/) , Contributor:  
_http://ratiojuris.blogspot.com/_ (http://ratiojuris.blogspot.com/) _
Essentially  Contested America, Editor-In-Chief _ 
(http://www.essentiallycontestedamerica.org/) _http://www.essentiallycontestedamerica.org/_ 
(http://www.essentiallycontestedamerica.org/) _ 

In a  message dated 2/5/2009 4:04:31 P.M. Eastern Standard Time, 
jca at stanford.edu  writes:
_ (http://www.essentiallycontestedamerica.org/) 
It's not rare for one or more justices to be unable to vote, usually  because 
they have recused themselves (stock holdings, the Justice or a  relative is 
somehow involved in the case) but also because of  illness.  A majority of the 
Justices who remain is required for a  decision; an equally divided vote 
always results in "affirmed by an  equally divided Court" with no precedential 
effect, no matter what the  reason.  A Justice going into the hospital is by no 
means  unprecedented.  It's not like the President where someone has to have  
the nuclear codes.  And Chief Justice Rehnquist went through a long  illness -- 
diagnosed in Oct. 2004, missed 44 oral arguments, died in  office in Sept 
2005.  He was also hospitalized earlier for a back  problem and addiction to 
painkillers. 

At 11:53 AM 2/5/2009, RJLipkin at aol.com wrote:

While I'm sure we're  all hoping for Justice Ginsburg's successful surgery, 
her situation  raises a host of issues about how the Court functions when a 
Justice is  unable to perform his or her responsibilities.  Are there are  
specific rules governing this matter? Am I right in saying an 8-3  decision stands 
as law?  What happens in split decisions?   Finally, what if a Justice cannot 
perform his or her functions and is  unable to express a decision to resign?  
Any information on these  issues would be appreciated.

Bobby

Robert Justin Lipkin

Distinguished Professor of Law

Widener University School of Law

Delaware

Ratio Juris

,  Contributor: _http://ratiojuris.blogspot.com/_ 
(http://ratiojuris.blogspot.com/) _

Essentially Contested America_ (http://www.essentiallycontestedamerica.org/) 
, Editor-In-Chief _http://www.essentiallycontestedamerica.org/_ 
(http://www.essentiallycontestedamerica.org/) _

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