The dark underside of life tenure for Supreme Court Justices is the difficulty of removing an obviously ailing Justice even after his or her capacity to serve has seriously deteriorated.  However, despite the absence of effective formal removal mechanisms, Chief Justices have sometimes been successful in nudging declining Associate Justices off the bench, as in the cases of Justices Holmes and Douglas.  But what is to be done if it is the Chief who can no longer serve?

That is the question explored in a new paper on SSRN by Chad Oldfather and Todd Peppers.  Although other scholars have grappled with the general problem of disability on the Supreme Court, Oldfather and Peppers identify two reasons why the problem is especially acute when it comes to the Chief.  First, it is much more common for Chief Justices than Associate Justices to serve until the time of death or a major disability.  Only four of the past sixteen Chief Justices have retired while in good health.  (Oldfather and Peppers use the decline and passing of the late William Rehnquist as a case study of the more typical pattern for Chief Justices.)  Second, the Chief is not merely one of nine adjudicators on the Court, but also serves as the administrative head of the entire federal judiciary.  For that reason, the incapacitation of the Chief Justice may do much more damage than the incapacitation of an Associate.

Oldfather and Peppers do not advocate for a particular solution, but they do urge consideration of various potential reforms, such as the imposition of a term limit on the Chief Justice.

Entitled “Till Death Do Us Part: Chief Justices and the United States Supreme Court,” their paper will be published in the Marquette Law Review.