A judge's lot is not a happy one. They find impertinent people in front of the bench. (Lord Birkenhead, testifying: "There he was, drunk as a judge." The judge, interrupting: "You mean drunk as a lord." Birkenhead: "Yes, my lord.") And, if you are a U.S. Supreme Court justice, there are intolerable people on the bench next to you.
At least that is the testimony of Justices Thurgood Marshall, John Paul Stevens and Harry Blackmun. They have recently discarded traditional restraints and publicly accused their colleagues (to be precise -- those who disagree with them) of lacking appropriate restraint. (The American Civil Liberties Union has joined the chorus, saying, "Americans are far less free today than they were a year ago," but shrill public foolishness is an ACLU tradition.)
The three justices are liberals who have been on the losing side a lot recently and are not taking it in good grace. Marshall and Stevens complain that rulings by the Warren Court are being undermined. However, not one of that court's landmark rulings has been overturned or more than marginally circumscribed (as in the "good faith exception" to the exclusionary rule governing admissibility of illegally seized evidence).
Blackmun complains about the court's workload, the absence of comity among the justices and that the conservatives (meaning, presumably, Warren Burger, Sandra Day O'Connor, Lewis Powell, William Rehnquist and Byron White) are going where they want to go "by hook or by crook." It is an odd complaint coming from Blackmun, who wrote the most radical and incoherent major opinion in American constitutional history, the 1973 abortion opinion. It went where Blackmun wanted to go and did so without serious grounding in the Constitution, and has generated a flood of work for the court.
The public campaign by the three unhappy justices is an example and an exacerbation of the incivility that Blackmun deplores. Tension and ill will probably are inevitable in the intense politics and intellectual conflicts of a small face-to-face institution such as the court. Theo Lippman of the Baltimore Sun notes that seven of today's justices have been living in close confinement with each other for 13 years, a degree of "stagnation" (Lippman's word) unmatched in 170 years. The bad tempers as well as the ages of the justices raised the possibility that the next president will nominate several -- perhaps four -- new ones.
'Tis said that only God can change the court. But George Washington, who was, so to speak, present at Creation, nominated 11 justices in an era when the court had only six members. FDR, who served 12 years, nominated eight justices -- seven in four years (1937-41). Taft and Jackson nominated six, Lincoln and Eisenhower five. Carter was the only president to serve a full four-year term without filling an opening on the court.
By this Election Day, the average age of the court will be 70 years and 56 days. But this is only the second oldest court. On June 2, 1937, when Justice Van Devanter retired at 78, the average age was 72 years and 52 days. If the current justices choose to stay on, and God defers to their choices, today's court will be as old as the 1937 Court on Nov. 2, 1986.
However, never has the court had a majority of members 76 or older, as it will this Nov. 12, when Blackmun turns 76. (Only O'Connor, 54, is under 60. Rehnquist is 60, Stevens 64, White 67, Marshall 76, Burger and Powell 77 and William Brennan 78.)
However, Tim O'Brien, who covers the court for ABC, reports that in the last six months six justices have told him that they are not contemplating retirement and not aware of any justice who is. Furthermore, O'Brien notes that of the 102 justices who have served on the court, 32 served 20 years or longer. Roger Taney was still chief justice when he died at 87 in 1864. Louis Brandeis retired at 82, Hugo Black at 85, Oliver Wendell Holmes at 90. More justices have died in office than have retired. But, actuarily speaking, each of today's five oldest justices has a life expectancy of seven more years. So O'Brien suggests that in 1988 we might be reading stories that begin, "With five Justices now 80 or older, whoever wins the election could . . ."
The "court issue" probably favors President Reagan because, to many voters and especially to many blue-collar Democrats, liberal justices are equated with forced busing and the "coddling" of criminals. But how does a president in his seventies say that some justices in their seventies may have to be replaced soon? Very carefully.