Blogs > Cliopatria > Rehnquist's Excuse

Jul 14, 2005 8:19 pm


Rehnquist's Excuse



Chief Justice Rehnquist's schoolboy reply to reporters the other day that it is for him to know whether he plans to resign and them to find out is symptomatic of his failure to handle this episode in his career with aplomb.

He holds as chief justice a great deal of power. It is not unreasonable for reporters to wonder if he plans to continue holding onto this power in light of his physical ailments. To treat their question with contempt, as he did, is beneath his office--and an insult to democracy.

But the deeper question, suggested by history, is whether he ought to hold onto power when his own ability to execute his responsibilities is in question.

As the conservatives like to say, Let's go back to first principles.

The reason justices are given life tenure on the Court is to protect them from outside political influence. The Court of course is deeply influenced by outside events (as Mr. Dooley noted a century ago, they follow the elections). But life tenure affords them needed independence from daily political concerns.

Justice Rehnquist in staying on the Court is exercising a right given to him by the framers. But in doing so he is not honoring a principle of the framers. Indeed, he is abusing the right he was given. It was given him to protect the independence of the third branch of government even at the risk that some might abuse the right by hanging onto the office after they were no longer able to fill it. The founders were aware that some men might abuse the right. Within 15 years of the making of the Constitution one man did: New Hampshire Judge John Pickering, who lost his mind while a member of the federal judiciary. But the framers were convinced that few men would abuse the right and that in any case the risk of some men abusing it was a risk worth taking so that all men might be protected in the independent exercise of their judgment.

In hanging on the chief justice is demeaning himself and his Court. He should resign forthwith and let the president pick a replacement in a timely manner.


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