Lion of the Blogosphere

What happens if a Supreme Court justice is incapacitated but not dead?

with 32 comments

The answer is that without a formal retirement by the justice, he or she retains his or her position until death.

Law clerks can pick up the slack, but if the justice is unable to vote, then the Court would defer any cases where said justice’s vote would be required to break a tie.

Written by Lion of the Blogosphere

November 8, 2018 at EST pm

Posted in Law

32 Responses

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  1. What would happen is that instead of being a 5-4 Republican court, it would be 5-3. Ginsburg will hold out hoping a Demo gets elected in 2020, just like she did three years ago.

    There might be a fight over whether Ginsburg can vote if she can’t attend oral arguments or come into the office. I don’t know if there is a provision for remote voting by Justices. If there isn’t, Democrats will say that it is racist and undemocratic that there isn’t one.

    Sternhammer

    November 8, 2018 at EST pm

    • She can’t vote if she can’t vote, so cases that would be 4-4 decisions would be deferred.

      Lion of the Blogosphere

      November 8, 2018 at EST pm

    • I don’t know if there is a provision for remote voting by Justices. If there isn’t, Democrats will say that it is racist and undemocratic that there isn’t one.

      If she isn’t dead the only way Ginsburg doesn’t vote is if she’s unconscious.

      The Undiscovered Jew

      November 8, 2018 at EST pm

  2. Best I can tell is there is currently no mechanism to remove them in this scenario. I suppose an impeacment could be used but I’d imagine that would be heavily frowned upon.

    GSP

    November 8, 2018 at EST pm

    • Impeachment is the least likely thing to happen.

      Lion of the Blogosphere

      November 8, 2018 at EST pm

    • All we have is custom. When William Douglas tried to stay on the Court after he was no longer capable, the other justices pressured him into resigning. But I can’t see Ginsburg being susceptible to that — and frankly I wouldn’t either if I was in her position.

      Richard

      November 8, 2018 at EST pm

  3. I am imagining a Weekend at Bernie’s type situation now with Ruth…

    rivelino

    November 8, 2018 at EST pm

    • Or Norman Bates mother.

      Steve

      November 8, 2018 at EST pm

  4. Asylum seeker travel ban:

    Watch – liberals will rebrand this as the “Latino ban” (or Latinx ban if woke)

    IHTG

    November 8, 2018 at EST pm

    • I desperately wish they would change the law in Canada so people who enter illegally can’t apply for refugee status. There is a Nigerian scam going on whereby Nigerians get a visitors visa for the USA. After they arrive in America they cross irregularly into Canada (not at a regular crossing) and apply for refugee status. Some loophole in the law enables them to do this. Thousands of them have come into Canada this way. Trudope figures it’s all good because they will vote for him and it gives him a chance to virtue signal. He is putting them up at hotels in Toronto and giving them lots of free stuff. The Radisson Hotel in Toronto is almost entirely filled with them. The place will be trashed by the time they leave. I wish there was a Canadian Trump.

      Rosenmops

      November 8, 2018 at EST pm

      • He has to be voted out. If he gets another five years… I can’t even bear to think about it.

        Frau Katze

        November 8, 2018 at EST pm

      • I’ve been reliably told that allowing 7 billion people to seek refugee status in Canada is who Canadians are. Glad the US is helping you achieve your dreams!

        Mike Street Station

        November 9, 2018 at EST am

      • All people are equal. Never forget it.
        (1) racism accounts for academic gaps. (stated at government sponsored forum by government sponsored diversity counselor in my community earlier this year).
        (2) racism is responsible for lower black life span and higher hypertension. (Stated by public health official report in my community in past year).
        (3) Red lining in the 30s made black neighborhoods dumps. (Stated at first mentioned public forum and in government sponsored report).

        You have no idea what nonsense the government is spending boatloads of money trying to legitimize.

        Curle

        November 9, 2018 at EST am

  5. Looks like Gillum is going to win Florida!

    I think we should recount other close races too!

    Greg Deece

    November 8, 2018 at EST pm

    • Tiny Duck, how about Abrams in Georgia?

      MEH 0910

      November 8, 2018 at EST pm

  6. How about brain dead, but on life support? The body could last quite some time on life support.

    My 2¢

    November 8, 2018 at EST pm

  7. Breaking News

    I’m at McD’s and at this very minute an obese black woman is complaining that the chicken mcnuggets are not fresh and are “breaking my teeth.” But she isn’s strident ir harsh. Calm, intelligent voice. She says, “that’s not fair to me.” The hispanic staff isn’t giving her any pushback, but she’s calling 911 anyway. Wow, maybe I’ll be in the middle of a COPS episde.

    Marty

    November 8, 2018 at EST pm

    • Calling 911 over chicken nuggets? I hope you are recording it.

      Rosenmops

      November 8, 2018 at EST pm

    • I’m sorry to say that being even tangentially connected to this makes you prole.

      Anon Name

      November 8, 2018 at EST pm

      • This is a site for slightly self-aware and socially embarrassed proles. Should be called Lion of the Prolesphere.

        Curle

        November 9, 2018 at EST am

  8. OT: looks like we’re going to lose the Arizona Senate race we thought we’d won on election night. The GOP candidate is currently down 9,000 votes with nearly 500,000 left to count.

    If the outstanding ballots vote in line with how their counties have already voted, McSally won’t make up any ground at all — she’ll lose by another 13,000.

    Richard

    November 8, 2018 at EST pm

  9. McSally should have enough votes in the batch left to more than overcome her present deficit. Enema’s latest batch were from Tucson, where she held an obvious advantage. The balance to come favour McS by around the same ratio, so there’s that.

    Also military votes to come – 90% McS – likely around 2,000.

    Of course, it depends on who’s in charge of the count, as we know from Broward Co., Fl.

    gda53

    November 9, 2018 at EST am

  10. “What happens if a Supreme Court justice is incapacitated but not dead?”

    Well, I guess you’d cover their mouth and nose til they stop squirming.

    destructure

    November 9, 2018 at EST am

  11. One of the greatest flaws of the original constitution was granting appointed judges lifetime tenure. They can only be removed by death, resignation or impeachment, which seems unduly harsh for a judge whose only problem is health issues. Anyway, in the entire history of the republic, only one supreme court justice has been impeached, and he was not convicted.

    There are nine judicial districts – better to allow each one to elect a justice on a staggered basis, so they wouldn’t all be up for reelection at the same time. Give them a reasonable term (say, five or six years), and
    allow them st stand for reelection once. Then they can go to some high-paying private lawyer job.

    The Supreme Court has turned out to be much more powerful than the Founders intended. When it makes a decision on a constitutional basis, it can only be overruled by a constitutional amendment, which is almost impossible. The justices are responsible to no one.

    Of course, electing federal judges could only be acheived by constitutional amendment, which ain’t gonna happen. Still, that doesn’t mean it’s not a good idea.

    Black Death

    November 9, 2018 at EST am

    • It’s extremely unlikely that the Constitiution will ever be ammended as you suggest.

      Lion of the Blogosphere

      November 9, 2018 at EST am

    • The more popular and viable proposal is that justices are permitted one 18 year term. Every President gets to choose two justices.

      Vince

      November 9, 2018 at EST pm

    • Lifetime tenure was supposed to insulate the court from political concerns.

      The real problem is that the Court has amassed so much power, through its own ambition and the fecklessness of other branches, that there’s a nearly irresistible compulsion to use it if you find yourself holding it. That’s why our judges “grow into it” (swing left) but theirs never flip sides. I don’t see how staggered terms will change what’s really at issue. In practice it’ll probably just accelerate the court’s transfer to a left-wing majority.

      Richard

      November 9, 2018 at EST pm

    • The SC actually works pretty well most of the time. In fact, most of the justices agree on the overwhelming majority of cases. There are only a small number of problems. First, Republican presidents have an unfortunate habit of electing stealth liberals like O’Connor and Kennedy. They’ve only done a couple and they weren’t that bad. But being even a little bad is a big deal when there are so few appointments and they’re on the bench for 30 years.

      Second problem is the same problem we have with all liberals — absolutely no integrity whatsoever. They’ll lie, cheat, steal and just plain make stuff up to get their way. I’m referring to their abuse of the 14th amendment to justify things it was clearly never intended to. There is absolutely nothing about 14A that concerns abortion or gay marriage, And yet, that was their justification for Roe vs Wade and Obergefell v. Hodges.

      And the third problem is that the conservative justices don’t call them out on their BS forcefully enough. They should have written in their dissenting opinion that it was a deliberate and willful abuse of 14A and that the leftist justices were compromised and unfit for the bench. Yeah, they should have gone nuclear. . Even worse, the conservative justices simply accept those rulings as the new status quo because they don’t like to overturn prior rulings. But allowing bad precedent to stand is itself a bad precedent. There are a handful of rulings that should absolutely be swept away wholesale rather than merely “tweaked” ie affirmative action.

      destructure

      November 9, 2018 at EST pm

  12. There were an unusual amount of super-close races this election and super-close races tend to get decided long after Election Day. The GOP won more than their share on Tuesday, even counting the races yet to be decided against them. No need to go into conniptions. Voters in the Pacific Coast states seem to like voting absentee for some reason I don’t really understand.

    Whichever way the Arizona Senate race goes is actually pretty important because if it goes GOP, Trump doesn’t have to worry too much about defections in confirmation votes and the GOP has a good cushion for 2020. Otherwise Mitt Romney will hold the balance of power in the Senate. The governorships are important for the people who live in those states.

    eD

    November 9, 2018 at EST am

    • Romney has turned out o be a real shit, I wouldn’t have predicted that back in 2012.

      destructure

      November 9, 2018 at EST pm

  13. With charity to all and malice to none, RBG, among many others, has got to go for the benefit of this poor country.

    Yakov

    November 9, 2018 at EST pm


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