Tags: 2020 Elections | Donald Trump | Supreme Court | amendment | constitution | lunacy | marshall

What if Justice Ginsburg Were in a Coma?

What if Justice Ginsburg Were in a Coma?

A private ceremony for Justice Ruth Bader Ginsburg at the U.S. Supreme Court in Washington, D.C. - Sept. 23, 2020. (Andrew Harnik /Pool/AFP via Getty Images) 

By Wednesday, 23 September 2020 01:38 PM Current | Bio | Archive

With no disrespect for the recently departed Justice Ruth Bader Ginsburg, as a law professor I must explore the following hypothetical situation which could well have taken place with regard to her and might well take with regard to a justice in the future.

What would the situation be now if Justice Ginsburg had gone into a long coma, but remained alive through the end of the current presidential term?

We know what would happen if a president were to be comatose.

The 25th Amendment would kick in — a process would be in place for replacing him either temporarily or permanently.

But there is no such constitutional amendment for a justice of the U.S. Supreme Court.

The Constitution provides that a justice may serve during good behavior.

Being in a coma is not bad behavior. Nor is it an impeachable offence.

A comatose justice would not have the mental capacity to resign.

Nor under the constitution could she or he be compelled to resign while incapacitated.

When Justice Thurgood Marshall was ailing near the end of his life, he quipped to his law clerks, "If I die, prop me up and keep on voting."

Justice Marshall, who I knew for many years, had a great sense of humor, including about his own mortality. Justice Ginsburg left no such instructions, humorous or otherwise.

She did reportedly tell her granddaughter that she did not want to be replaced by President Trump, but under the Constitution her dying wishes have no impact on who nominates her replacement and when it is made.

Throughout our nation's history we have had judges who have become incapacitated, through senility or other illnesses. One was diagnosed with "incurable lunacy" but did not retire.

Seriously incapacitated justices and judges have generally retired through informal pressures by their colleagues.

But in the highly public and politicized process of replacing a justice, the legal procedures should be crystal clear to avoid partisan manipulation.

They are not clear today.

Nor could they necessarily be clarified by statute or regulation, as has been tried over the years.

The words of the Constitution prevail, and they provide for life tenure during good behavior.

Some would argue that good behavior is an affirmative criteria and that a comatose justice could not engage in such behavior and so must be removed from the court and a replacement selected.

But such a view would surely be contested in a situation like the one we now face, where a liberal Democrat is being replaced by a conservative Republican.

If a president of the opposite party from the justice were to nominate a replacement in the absence of the resignation or death of the incumbent, there would surely be a loud outcry from the other side.

Nor is it clear who would resolve any partisan dispute over the power of the president to replace a comatose justice.

The president would claim such power.

The Senate, if it were under the control of the president’s party, might well confirm his nominee. The Supreme Court would have little choice but to seat the replacement justice.

But the integrity of the court would be damaged and the legitimacy of the justice would be questioned.

To further exacerbate the situation and to make the hypothetical more interesting, what if the comatose justice were then to fully recover?

Could she or he claim their seat, arguing that they did not relinquish it as a matter of law?

These questions, though hypothetical, are what keep law professors and their students awake, if not at night at least in the classroom.

Although normally I have opinions about such matters of constitutional law, I must admit I have no idea what would have happened if Justice Ginsburg had fallen into a coma and remained alive until Jan. 20, 2021.

It didn’t happen this time, but it could happen sooner rather than later, especially since several justices are now at an age in which strokes and other medical conditions are not beyond the realm of possibility.

So let’s plan now for such an eventuality.

A constitutional amendment, akin to the 25th should be proposed for Supreme Court justices. Since we now don’t know which justices if any might be affected by this situation, it may be possible to get a consensus regarding this matter.

The great philosopher John Rawls wrote that the best way to secure justice is for those making the decisions not to know how it will impact them, or in this case their party.

We now live in a Rawlsian world when it comes to a disabled justice, so it is the right time to plan for the future and establish a rule that will operate regardless of person, party or ideology.

Follow Alan Dershowitz on Twitter: @AlanDersh

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Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "Guilt by Accusation" and "The Case Against the Democratic House Impeaching Trump." Read Alan Dershowtiz's Reports More Here.

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Justice Ginsburg did reportedly tell her granddaughter that she did not want to be replaced by President Trump, but under the Constitution her dying wishes have no impact on who nominates her replacement and when it is made.
amendment, constitution, lunacy, marshall, rawls
Wednesday, 23 September 2020 01:38 PM
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