While Justice Sleeps

In re the Supreme Court, as the lawyers say, public attention typically focuses on the 130 or so opinions it renders each year. But the time has come to widen the focus. When next the Court hears oral argument, ask yourself this: Is the fellow in the black robes, second from the left, actually listening? Or has his mind drifted elsewhere, perhaps to what TV Guide offers that afternoon? And of the 15 or so opinions of the Court assigned to him during the term, how many does he—not his clerks—actually write? Indeed, how many does he read?

Thurgood Marshall, who turned eighty last year, isn’t the only Justice about whom such questions might be asked. There are others, and their continued presence on the Court raises a further question: Should Justices be required to retire when they reach a certain age? This is a question as old as the American Founding, but it deserves more serious consideration than ever before.

About the Author

Terry Eastland

Mr. Eastland was a publisher of The Weekly Standard. His books include Religious Liberty in the Supreme Court (1993).

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In re the Supreme Court, as the lawyers say, public attention typically focuses on the 130 or so opinions it renders each year. But the time has come to widen the focus. When next the Court hears oral argument, ask yourself this: Is the fellow in the black robes, second from the left, actually listening? Or has his mind drifted elsewhere, perhaps to what TV Guide offers that afternoon? And of the 15 or so opinions of the Court assigned to him during the term, how many does he—not his clerks—actually write? Indeed, how many does he read?

Thurgood Marshall, who turned eighty last year, isn’t the only Justice about whom such questions might be asked. There are others, and their continued presence on the Court raises a further question: Should Justices be required to retire when they reach a certain age? This is a question as old as the American Founding, but it deserves more serious consideration than ever before.