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Greenhouse on Souter on Rehnquist:
In Monday's New York Times, Linda Greenhouse has a piece that includes comments from a rare interview with Justice Souter that sheds some light about the last Supreme Court term and the health of Chief Justice Rehnquist:
  Justice David H. Souter said he was flabbergasted to learn of the chief justice's death. He said that while Chief Justice Rehnquist had appeared extremely weak when he returned to the bench in March after an absence of more than four months - "and I wondered whether he would be able to finish the term" - the chief justice's health had then appeared to turn around.
  "He had an amazing few months" and his decision at the end of the term not to retire had not seemed unreasonable, Justice Souter said.
  Justice Souter, speaking by telephone from his home in New Hampshire, said there had been an "unconscious anxiety" throughout the last term, which had been under way only a month when the chief justice learned he had thyroid cancer and began intensive treatment with chemotherapy and radiation.
  It was months before the other justices saw him again. Even after he returned to the court, the chief justice did not discuss his condition or prognosis with his colleagues.
  Unable to take food or drink orally because of a tracheotomy - a hole in his throat that enabled him to breathe after the cancer impinged on his windpipe - the chief justice would absent himself from the justices' communal lunches and morning coffee.
  "He was so unobtrusive about it, and made it easy for us," Justice Souter said. "And yet it was there all the time. It had to weigh on us."
  Link via Howard.
Justin Kee (mail):
I wonder how that impacts the court about the use of medical marijuana. Sometime it takes a death in the family to make a difference.....
9.5.2005 2:48am
Larry (mail):
Your quote from Souter is a bit disquieting. He seems to see nothing wrong with continuing to serve after 80. Let's hope he isn't there another 15 years.
9.5.2005 2:51am
Shelby (mail):
Larry,

I have no fixed opinion regarding Justice Rehnquist. I do, however, "see nothing wrong with continuing to serve after 80". (I'm under 40, so this is not personal.) Being over 80 correlates to some (unknown, to the general populace) degree with reduced function and, potentially, increased likelihood of death. The reduction in function and the degree of increase relate largely to other factors -- existing mental impairment, immune system degradation, et cetera. These are constantly being reduced; that is, being over 80 is increasingly de-linked from incapacity and likelihood of death.

That being so, I'm disinclined to make age a "per se" restriction on service in any particular job. I have no argument with increased testing over a certain age, much as some states have special, more frequent driving tests for drivers over a given age. However, in a world where people are living longer (and, very relevantly, therefore may have to provide for themselves longer) they should not face serious barriers against working longer.
9.5.2005 3:45am
PersonFromPorlock:
Do we know for a fact that Rehnquist died of cancer? It's widely assumed so, but at eighty he might easily have died suddenly of something else, which would moot the question of whether he should have hung on so long in the face of his cancer.
9.5.2005 5:00am
jgshapiro (mail):
Shelby:

Do you propose to 'test' justices once they reach 75 or 80 as to their mental competence? Should they be presumed mentally competent unless they flunk or presumed incompetent unless they pass?

The advantage of a per se age restriction is that it removes the negative connotation that would accompany a retirement if you DID have a test -- e.g., they retired because they failed, or couldn't pass the test, or they retired because they were anxious about their ability to pass the test.

Instead, so and so retired because he had to and he would not have been able to stay no matter what -- so don't assume they were mentally impaired by their retirement.

I don't even know how a test would apply to physical impairment of a predominantly mental job like that of a supreme court justice. How ill would they have to be to fail?
9.5.2005 5:05am
Brian G (mail) (www):
It's a shame the interview wasn't from Souter's "soon-to-be condemned home, which is to make way for a hotel, which will serve the important public purpose of providing jobs and tax revenues."
9.5.2005 7:39pm