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Four Supreme Court Justices are older than 75. Is that a problem?

U.S. Supreme Court Justice Ruth Bader Ginsburg, the oldest currently serving justice, speaks at Brandeis University in Waltham, Mass. on Jan. 28. (Michael Dwyer / Associated Press)
U.S. Supreme Court Justice Ruth Bader Ginsburg, the oldest currently serving justice, speaks at Brandeis University in Waltham, Mass. on Jan. 28. (Michael Dwyer / Associated Press)

In a law review article I wrote 15 years ago about cognitive decline on the U.S. Supreme Court, I predicted that, in the coming years, no one would take action to mitigate the problem. Instead, another half a dozen mentally decrepit justices would join “the roster of jurists who harmed their court and hurt their own reputations by remaining on the bench too long.”

Although most justices who have retired since then left with their wits (more or less) intact, I’m concerned that my prediction is about to come true.

Today we have four Supreme Court justices who are superannuated: Stephen G. Breyer is 77, Anthony M. Kennedy will turn 80 this summer, Antonin Scalia will celebrate his 80th birthday on March 11, and Ruth Bader Ginsburg will celebrate her 83rd four days later. Both Clarence Thomas, 67, and Samuel A. Alito Jr., 65, also qualify for Social Security. None of these justices has indicated that he or she will step down anytime soon, even if a like-minded individual wins the White House this year. (Officeholders in the “apolitical branch” often time their retirements for when an ideological cognate sits in the Oval Office.)

In the past, once-revered justices such as William O. Douglas and Hugo Black could at least count on relative privacy when they doddered into senility; the press didn’t check behind certain closed doors. But with Justice Breyer showing up on TMZ, Justice Alito and Chief Justice John G. Roberts Jr. (age 61) regularly attendingpublic sporting events, and Justice Sonia Sotomayor (age 61) getting spotted at Costco, a secret breakdown is no longer realistic.

That the two oldest justices, Ginsburg and Scalia, represent opposite poles of the ideological spectrum is a happy accident, as calls for reform must have a nonpartisan hue. Although neither has had a confirmed episode of cognitive decline, they’re both putting themselves in the way of embarrassment. Ginsburg fell asleep during the State of the Union (twice), the papal address and even during an oral argument; she also speaks aboutpending cases, which, if not a sign that she’s forgotten the rules, is an indication that she’s beyond respecting them. Scalia once called himself an “old fogey” who doesn’t understand the world in which he lives, and he sounds increasingly irritated in his opinions and public speeches.

Read more at LATimes.com…

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