August 22, 2021

Ghosts of the Supreme Court: A Historical and Jurisdictional Analysis Justifying a Constitutional Amendment for Compulsory Medical Retirement

Written By

Kristen E. Hahn
Associate, Stoll Keenon Ogden PLLC


What happens when a United States Supreme Court Justice becomes incapacitated, such as in a coma, where they are unable to voluntarily retire from the bench? Impeachment of that Justice is not an option: impeachment of federal judges is not permitted “for conduct less than that which triggers the impeachment provisions of Articles I and II” of the Constitution.1 Only federal judges below the Supreme Court may be removed pursuant to the Judicial Conduct and Disability Act.2 Other branches of government and many states have proactively resolved the issue. Members of the House of Representatives serve two-year terms and Senators serve six-year terms,3 thus avoiding any long-term difficulties and consequences if a member of Congress becomes medically unable to perform their duties. Section Four of the Twenty-Fifth Amendment to the Constitution solves this problem for the President.4 However, there is a significant void in present law—be it constitutional or elsewhere in federal law—with nothing to resolve the delicate but devastating controversy of an infirmed Justice, serving a life term while offering no meaningful contribution to the Court. The law is silent as to when a once-filled seat on the bench of the highest court in the land is occupied solely by the ghost of what once was. READ MORE

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