One is to resign with grace, at the peak of one's career, and the other is to stay on too long, making an idiot of oneself long after the neurons have stopped firing. It's not necessarily a matter of age; many of our best justices have lasted well into their 80s. Instead, it's a matter of competence and professionalism.
There's a famous story about Oliver Wendell Holmes, who stayed on the Court until he was 91 and who wrote brilliant decisions well into his last decade. But Holmes was beginning to falter, and Chief Justice Charles Evans Hughes met with him privately and persuaded him that it was time to go. "Give me the statute book," Holmes requested, pointing to the shelf where it rested, "and I'll write out my resignation right now." He did it on the spot. After the meeting, a law clerk "found the Chief Justice so upset at asking Holmes to resign that he had tears streaming down his cheeks."
William Douglas, on the other hand, simply wouldn't leave. At 75, he was paralyzed from a stroke and often inarticulate, and after several behind-the-scenes maneuvers, the other justices eventually forced him to resign. Yet he discovered a Depression-era law that allowed retired justices to perform duties "when designated and assigned" by the Chief Justice. Unfortunately, as Woodward and Armstrong relate in The Brethren, Douglas took it upon himself to assign his own duties, and his former colleagues decided they
would have to put an end to Douglas's attempts to interfere. They agreed to draft an unequivocal letter to him explaining that since he had resigned, he had no official duties on the Court. He could not sit for oral argument, vote, speak at conference, write or publish opinions. Burger wrote the letter and had it hand-carried to each Justice for his signature.Which brings us not to John Paul Stevens, who at 85 shows no (public) sign of slowing down, but to the quickly regressing Antonin Scalia, who is beginning to behave like a 7-year-old brat instead of a 70-year-old statesman.
As has been widely reported in the press, Scalia has been a busy man the past few weeks, liberally dispensing his patented concoction of choler and contemptuousness. First, in a public forum and in response to a question about the Guantanamo Bay case currently before the Court, he tells law students in Switzerland:
"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. . . . Give me a break.Those statements, in my book, are cause for recusal on two grounds: first (and obviously), he shouldn't be commenting publicly on a case before the court and, second, he has declaimed an inability to separate the case from his personal life (i.e., his son). As one of the lawyers in the case, Hamdan v. Rumsfeld, argues in a request for Scalia's recusal, his comments "give rise to the unfortunate appearance that, even before briefing was complete, he had already made up his mind about issues in the case."
"I had a son (Matthew Scalia) on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy."
And it's not the first time that Scalia has spoken out of turn and put himself in the middle of a recusal battle. As the Fredericksburg Free-Lance Star, a usually conservative newspaper, begrudgingly admitted a little over two years ago, Scalia's behavior "was unjudgelike. You would expect this kind of revealment more from a one-gallus JP than from a man addressed as 'Mr. Justice.'"
To top it all off, according to a report in the Murdoch-owned Boston Herald, Scalia emerged from a church this past Sunday and showed the world that he has completely lost his sense of judge(ment):
"You know what I say to those people?" Scalia, 70, replied, making an obscene gesture, flicking his hand under his chin when asked by a Herald reporter if he fends off a lot of flak for publicly celebrating his conservative Roman Catholic beliefs.If he was joking, as his defenders will no doubt likely claim, then it shows at the very least an extraordinary lack of perspicacity (not to mention a lack of a sense of humor). But it's part of a pattern: In recent years, Scalia has increasingly marginalized himself from his colleagues with his behavior and his dissents, which are nearly always vituperative and often irrationally worded. None of his successors, right or left, are likely to quote his decisions in any future where democracy and law prevail, since Supreme Court justices have a historically admirable tendency to quote tedious jurisprudence rather than rabid demagoguery.
Scalia's behavior has gone beyond the realm of orneriness and into the kingdom of madness. There's nothing, unfortunately, that Americans can do when a Supreme Court Justice begins to show signs of misplaced marbles. Our only hope, however unlikely, is that Scalia's fellow justices will remember the examples of Holmes and Douglas and plan an intervention. If Scalia can't behave like a judge, he and his colleagues need to think about whether he should continue to be one.