Law Prof Suggests Justices May Need to Be Nudged into Retirement

A Duke University law professor says U.S. Supreme Court justices “often cling to their offices until they die,” but suggests that there is a better way.

Writing in a New York Times op-ed, law professor Paul Carrington says justices are supposed to serve during “good behavior,” but some don’t know when it’s time to retire.

“Some justices, even those seriously unfit, have held on to their awesome power and status long beyond what was reasonable,” Carrington writes. “William Rehnquist, who continued to work on cases in 2005 even as he was dying of cancer, is the most recent example. The celebrated Thurgood Marshall, who was 82 when he retired in 1991, was another.”

Carrington says justices want to stay because their jobs have gotten easy. They hear only about 75 cases a year and delegate case selection to their law clerks, he says.

Carrington notes that circuit judicial councils, which police ethics complaints against federal trial and court of appeals judges, may request a judge’s retirement. Such councils can also issue a statement to be considered in impeachment proceedings if a judge rejects their advice.

Carrington says Congress could establish a similar process for Supreme Court justices. “This is not to suggest that any of our current Supreme Court justices should be addressed by such a discipline committee,” he writes. “But the mere existence of such a process would serve to remind our mortal justices that they have a right to serve during good behavior, not for life.”

Carrington was also quoted in an ABA Journal article on remaking the Supreme Court published last October.