In this issue
April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review June 30, 2010 / 18 Tamuz 5770

Declining on the bench

By Jeff Jacoby

Jeff Jacoby

http://www.JewishWorldReview.com | In the summer of 1990, Supreme Court Justice William Brennan retired and President George H.W. Bush named US Court of Appeals Judge David Souter to succeed him. A few days later, Justice Thurgood Marshall fumed about the Souter nomination in an interview with ABC News correspondent Sam Donaldson.

"When his name came down, I was listening to television," Marshall said. "I called my wife and said, 'Have I ever heard of this man?' She said, 'No.'" Marshall declared disdainfully that he didn't have "the slightest idea" why Bush had nominated Souter. He could say nothing good about the president -- in fact, he told Donaldson, "I consider him dead."

When the startled reporter pointed out that Bush was very much alive, Marshall snapped: "You're damn right he is. I just don't understand what he's doing. I don't understand it." A moment later, he declared that if Bush "came up for election, I'd vote against him. No question about it."

It was an embarrassing and unbecoming performance, and it exposed to public view what court insiders already knew: The once-formidable Marshall, now 82, was in serious decline -- not only physically, but mentally. "Some people watching that interview," Donaldson said when it aired, "will think that . . . he's lost it."

He may not have totally "lost it," but by then it was clear that Marshall was no longer a fully-engaged Supreme Court justice. He spent hours watching daytime TV and telling stories, while leaving the writing of his opinions to law clerks. In his prime, Marshall had been a masterful litigator and the Civil Rights movement's indispensable legal strategist. But now he "seemed uninformed and disengaged," as one of Justice Lewis Powell's clerks later wrote. By 1990, another former clerk recalled, "Marshall was no longer up to his responsibilities, or even the appearance of being up to them."

Elena Kagan's confirmation hearings before the Senate Judiciary Committee this week are largely a formality; barring the unexpected, the 50-year-old solicitor general will become the 112th Supreme Court justice. Under the Constitution, that position, and the extraordinary authority that goes with it, will then be hers for as long as she chooses to keep it. Kagan clerked for Marshall in the late 1980s, when he was already "in his decline and alienated, marginalized," as his biographer Juan Williams observed last month. It may have pained her to see a man she greatly admired cling to power well past the point when he should have let go. But there is nothing to stop her from one day doing the same thing.

Too many justices have. Chief Justice William Rehnquist refused to retire even as he was dying of a severely debilitating thyroid cancer. A stroke left Justice Hugo Black increasingly confused, his memory and focus badly impaired, yet he stayed on the bench until just days before his death. Justice William O. Douglas, also ravaged by a stroke, began dozing during oral arguments and slipping at times into near-incoherence; only after 10 months of this did he finally agree to depart.

"Mental decrepitude among aging justices is a persistently recurring problem," wrote historian David J. Garrow in a detailed analysis of the issue in 2000. "The history of the Court is replete with repeated instances of justices casting decisive votes . . . when their colleagues and/or families had serious doubts about their mental capacities." Worse yet, "mental decrepitude has been an even more frequent problem on the 20th-century court than it was during the 19th."

The Constitution's framers thought life tenure necessary to safeguard judicial independence, but they didn't foresee how immensely powerful the Supreme Court would become. Nor could they have predicted that the American life span, which averaged around 40 in their day, would lengthen so dramatically over the next two centuries. Had they known that justices would grow entrenched, hunkering down on the court for two or three decades, often into advanced old age with all its deteriorations, it is doubtful that life tenure would have struck them as such a good idea.

No other major democracy grants limitless terms to its supreme court judges; neither does any state except Rhode Island. Most Americans support an end to lifetime tenure, and the Constitution should be amended to reflect that. Supreme Court justices, as a number of legal scholars have proposed, should be limited to a single 18-year term, with their terms staggered two years apart. We don't allow our presidents to hold office for life. Isn't it time we stopped permitting our Supreme Court justices to do so?

Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.

Jeff Jacoby Archives

© 2010, Boston Globe