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Illness and Secrecy on the SupremeCourt
PERSPECTIVE ~ New England Journal of Medicine, Vol. 351, No. 26, December 23, 2004, Susan Okie, M.D., pages 2675-2678.
Reviewed by Gary L. Wolfstone
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Susan Okie, M.D. is a Contributing Editor to the New England Journal of Medicine ("the Journal") based in Washington, D.C., and she has written a timely and thought provoking article concerning the recent illness and absence of Chief Justice William Rehnquist.
It was said of William James that he was a psychologist who wrote like a novelist, and Henry James was a novelist who wrote like a psychologist. My critique of Dr. Okie is that she is a physician who writes like and thinks like a journalist. People who write like and think like journalists ultimately fall into the trap of using the shibboleth that "the public has a right to know" ~ which is a dangerously intrusive standard when applied to the United States Supreme Court. I hasten to add that Dr. Okie did not dogmatically advocate that precise phrase in her article, but she does seem to lament the problem that "there is no formal mechanism for monitoring" the physical and mental competence of the Justices. [At 2676] She mentions that other federal judges are subject to the Judicial Conduct and Disability Act of 1980 while we are left to scrutinizing the "physical stamina and mental sharpness" of the Justices through lawyers, journalists and members of the public who observe the Justices' behavior during oral argument. [At 2676] Adopting the Socratic method, Dr. Okie asks the questions (just short of advocating the position) ~ does the public have the right to information about a Justice's medical diagnosis, treatment and condition and what measure can ensure the timely retirement of a Justice who is severely impaired by physical or mental illness? [At 2677]
Quoting a Supreme Court spokeswoman, Kathy Arberg, Dr. Okie remarks that the Court has an internal practice for dealing with such situations as the illness of the Justices. Apparently dissatisfied with the internal practice, however, Dr. Okie goes on to remind us of "an increasingly common strategy" of requiring confidential examinations by a forensic psychiatrist to assess the competence of sitting federal judges other than Supreme Court Justices. If the current Justices have already agreed upon that policy or a similar procedure, she concludes, then "they should share that decision with the American public." [At 2678]
True enough, the Supreme Court Justices have an internal system for persuading their fellow Justices to reconsider a position or to retire from the bench. This system is loose and informal, and the Justices do not march but instead they are likely to shift and shuttle and whine and wheedle in their decision making process, including the decision to prevail upon another Justice to leave the Court for poor health. This time honored internal decision-making process is properly shrouded in privacy, and only an outside critic would use the value laden term "secrecy" to characterize the system. Those of us who are admitted to practice before the U.S. Supreme Court still have faith, for the most part, in the wisdom of the founding fathers who gave the Justices lifetime tenure (during good behavior ~ the impeachment standard) in Article III of the U.S. Constitution. Outsiders, and specifically people who think and write like journalists, frequently suggest that the Justices should not be permitted to meander but rather should be required to march to the tune of a new statute or Constitutional Amendment. Informal "agreements" are only valid and binding during the lifetimes of the sitting Justices who had concurred in the informal agreement. There are no easy answers, but imposing structure upon the highest Court in our land is a temporary solution whose efficacy is more intuitive than demonstrable.
Since Louis Braille devised the first system of Braille and since the first book was published in Braille in 1827, precious few changes have been made to Braille. Of course, if my colleague Bill Gates owned Braille, we would see Braille 95, Braille 98, Braille 2000, Braille XP, et ainsi de suite, et ainsi de suite. If it's not broke, do we really need to fix it? S/he among you who says that it is broke, let her persuade the state legislatures to amend the Constitution.