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Anticipating the Incapacitated Justice

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President Obama's recent announcement that he and the First Lady have living wills was hailed by professional bioethicists, myself included, as welcome publicity in the ongoing campaign to educate the public about advance directives. At the same time, by recording his personal wishes regarding end-of-life care, the President has helped to prevent the potential ethical and Constitutional crisis that might have arisen if he were ever to become medically incapacitated for a long period of time, particularly in a condition that required ventilator support or artificial nutrition, without having executed such a document. Although the Twenty-Fifth Amendment provides a mechanism for temporarily removing the President in cases of incapacity, it is not difficult to imagine a ghastly scenario in which enormous pressure might be exerted upon both his family and caregivers by individuals hoping to transform an Acting President into The President. A living will makes that much less likely.

Fortunately, the odds of our healthy, forty-eight year old President surviving through two terms are extremely high--calculated at greater than 94% by the actuarial firm of Bragg Associates. In contrast, it is only a matter of time before a Supreme Court justice becomes permanently incapacitated on the job, potentially generating a high-stakes political and moral conflict of unprecedented dimensions. Currently, no Constitutional or statutory mechanism has been established to handle this contingency. Yet if our nation is to avoid such a tragic and divisive confrontation--picture the Terri Schiavo case fused with the Robert Bork hearings--Congress must act before a justice loses decision-making capacity.

Supreme Court justices serve until retirement, impeachment or death. Although various term-limit and mandatory retirement schemes have been pitched over the years, the possibility of implementing such policies by Constitutional amendment would be nearly impossible in the current political climate. Furthermore, such a rule might deprive us of the wisdom of brilliant but aged jurists. Chief Justice Earl Warren turned seventy-five the year he enumerated the Miranda warnings; Hugo Black was already seventy-seven when his decision in Gideon v. Wainwright guaranteed criminal defendants a right to counsel; Justice Oliver Wendell Holmes was approaching seventy-nine when he promulgated the seminal "clear and present danger" test for free speech in Schenk v. United States. However, at the opposite end of the spectrum, Justice Joseph McKenna, severely debilitated by a stroke in 1915, served through ten years of significant cognitive impairment before Chief Justice William Howard Taft pressured him to resign in 1925. Similarly, Justice William O. Douglas was apparently so diminished by his early seventies that the other eight justices agreed to disregard or circumvent his vote in cases where they split 4-4.

Justices once died quickly, often at premature ages--Wiley Rutledge and Frank Murphy in 1949, Robert Jackson in 1954. Modern technology has transformed dying into a slow process that often involves a step-by-step descent through significant physical and cognitive setbacks. The cold, cruel reality is that with one current justice now approaching ninety, and four others over seventy, the day will inevitably arrive when a sitting justice lies in an intensive care unit, both unable to resign and unable to resume his or her duties. As our political process already grinds to a halt every time a vacant seat is announced on the Court, the challenges of first removing an incapacitated justice and then confirming a new justice might prove insurmountable.

Any physician who has ever counseled a family regarding the prognosis for a comatose relative or about the withdrawal of life support understands how trying such a process can be for all concerned. With a sitting justice in such a condition, the personal battle over whether and when to withdraw care would inevitably become politicized. A ghoulish reality, maybe--but reality nevertheless. Impasse is all too likely. As a result, the prospect of the Supreme Court meeting for years with only eight, or even seven, members is not inconceivable.

The most appealing solution to this lurking dilemma might be the execution of "trigger documents" by all of the sitting justices. Each justice, on his or her own terms, could specify conditions upon which his or her resignation would become automatic--unless the justice took overt action to countermand such a document. The simplest such trigger might be that when a justice is absent from the court for a full year, and does not submit a formal request to continue service, such a resignation would become automatic. Of course, the justices could not be compelled to execute such documents. At the same time, a love for their country and for the institution of the Court makes it probable that they would choose to do so. What is needed is federal legislation guaranteeing that such trigger resignations would be both legal and enforceable. Even if each justice currently drafted a documented stating that his resignation should become effective if medical incapacity kept him away from the court for a full term, it is not at all clear that such a contingency resignation would be valid. Congress should act now to make it so.

While it is a disturbing truth that our nation will someday confront the tragedy of an incapacitated justice, it is not at all clear which justice that will be. Nor do we know whether she will be a liberal or a conservative, a Democratic appointee or a Republican nominee. Morbidity has a knack for surprising us. Chief Justice Fred Vinson, named at fifty-six, died after only seven terms on the Court; Chief Justice Warren Burger, chosen at sixty-one, served seventeen years. What is clear is that, soon enough, the technological prowess of heroic medicine will come face to face with the politicization of the judiciary, likely over the incapacitated body of a critically-ill justice. We need to set up neutral rules well in advance of such a crisis. Once such rules have been established, our Supreme Court justices have a moral duty to spell out their contingency plans for leaving the court in cases of long-term or permanent medical incapacitation. Each of them owes it to the American people to do so. Our political system can ill afford a Supreme Court on perpetual life support.