Fix the Court today requested – via this letter – that the House Judiciary Subcommittee on Courts, IP and the Internet explore whether Congress, much as it requires their financial disclosures, may compel Supreme Court justices to release basic facts about their mental and physical health to the public.
This appeal comes following the National Law Journal’s attempt to obtain health information for each justice, only to be brushed back by Chief Justice Roberts, who wrote on his colleagues’ behalf last week that the court’s Public Information Office would merely “provide health information when a need to inform the public arises.”
“The ‘need to inform the public,’” Fix the Court executive director Gabe Roth said, “is more substantial than Roberts pronounces. Health disclosures give us faith that our nation’s top jurists are operating with full mental competency, and they may even help the justices themselves reflect on their abilities to continue in their positions.”
Read the letter: tinyurl.com/SCOTUShealth
Fix the Court is not suggesting that the public should be apprised of every judicial ailment, yet just as the eight comply with the Ethics in Government Act, which requires that justices submit annual financial disclosures listing investments, stock transactions and privately-funded travel, rudimentary health information can and should be a part of this annual exercise.
One reason the letter was sent to the House Judiciary Subcommittee on Courts, IP and the Internet – and specifically to its chairman, Rep. Darrell Issa, and its ranking member, Rep. Jerry Nadler – was due to the interest that members of the committee have taken in third branch accountability issues.
Chairman Issa, for example, opened a wide-ranging hearing on judicial transparency in July by stating, “It is time…for the judicial branch to come out of the shadows.”
For the first 180 years of our Republic, Supreme Court justices typically served about 15 years. Since 1970, the average length of tenure has nearly doubled, to 26 years, and the average age of the current cohort of justices is 69, near an all-time high.
According to the leading scholar on aging at the high court, the last half-century “has featured at least a half-dozen instances in which serious questions were or should have been asked about whether judicial votes were being cast by a less than fully competent justice.” This is rarely discussed yet of utmost importance.
The justices themselves have acknowledged the general phenomenon of age-based decline. “It is an unfortunate fact of life,” Justice Sandra Day O’Connor wrote in a 1991 opinion upholding a mandatory retirement age provision for state judges, “that physical and mental capacity sometimes diminish with age.”