In 2004 and 2005, despite his failing health, and inability to attend 44 arguments, Chief Justice Rehnquist refused to retire. Jan Crawford aptly summarized the Chief’s perspective on retirement in Supreme Conflict:
He was not indecisive, but fatalistic— the kind of man who would think, “If I can do my job today, I’m going to do it.” All through June, every weekday, Rehnquist was going to work in his chambers at the Court. That was an entirely different outlook than Rehnquist had once had. Two decades earlier, Rehnquist would shake his head and tell clerks he “never can understand why justices stay so long.” Several of his older law clerks, at their annual reunion months before he learned he had thyroid cancer, reminded Rehnquist that he once was puzzled about why some justices insisted on saying on the Court past their prime. “It turns out you look at it differently when you’re looking at it from this perspective,” he responded.
But what would have happened if Rehnquist became extremely ill–so ill that he could no longer cast votes–but he refused to resign. Or, imagine the year is 2020 or 2024, and an Octogenarian Justice is incapacitated, and unable to perform the duties of his or her office. But, rather than resigning, he or she is hoping to live long enough until the next election, when a President of his or her choosing is able to appoint a replacement. William Brennan tried, but he couldn’t wait out Reagan and Bush 41. Same for Thurgood Marshall.
What would happen? I recall reading that in the waning days of Justice Douglas’s tenure, the other Justices effectively disregarded his presence, and would not let him cast the deciding vote in any case. Would there be any internal mechanism for the other Justices to declare an incapacitated Justice is, to borrow the words of the 25th Amendment, “unable to discharge the powers and duties of his office”? Would this determination then trigger the President’s power to fill the vacancy? I don’t anticipate this happening. Timing a retirement to coincide with a President of your choosing seems to be the norm; but delaying retiring, even you cannot serve as a Justice is wildly inappropriate. In light of the drama that resulted from Rehnquist’s refusal to step down until it was too late, it is worth thinking about.