Should we care about the health of appellate judges (or justices)?

Last week Tony Mauro posted a story on Law.com about his attempt to inquire about the health status of the eight justices on the United States Supreme Court.  Chief Justice John Roberts sent a polite, but short response, informing Mauro that he “can expect to see an able and energetic Court when we reconvene in October.”

While I have a lot of respect for Mauro, I am surprised and disappointed with this fixation with the health of the justices on the Court.  While it may be quite relevant to know the basic health of a presidential candidate, who is elected to serve a 4 year term leading the free world, a judge or justice’s job is not intended to be all that important.  Remember, Hamilton called the Court the “least dangerous branch.”  Judges decide cases.  Yes, that involves a certain amount of discretion, but it is very different for the discretion and power that is given to the president.

Furthermore, judges and justices are appointed for life.  That means that they are going to get old and, at some point, die.  At the circuit court level, many judges take senior status when they are ready for a slower pace of life.  Some judges even voluntarily resign at a certain age.  Unless we want to amend the Constitution, an aging judiciary is just a fact of life.

Additionally, any questions about the health of a judge or justice are best considered at the nomination and confirmation stages, where they can be handled in executive session away from the prying eyes of the public.  Having worked nominations at the Department of Justice and the Senate, I have seen how both branches address sensitive issues of concern without making them a public news story.  Justice Scalia had every right to keep his medical records private, just like I do.  The fact that we have made the Supreme Court so political shouldn’t change that fact.

If you do want to know the most up-to-date public information about the Justices health, Mauro has outlined that information here. Not much here is new (other than the fact that Justice Kagan wears a fit bit).  It shows that the Court has some older members.  But, the more politicized we make the Supreme Court and nominations to that Court, the more likely members of that Court will stay in their seats as long as possible.  Since the politicization of the Court is unlikely to change any time soon, we should just rely on the good judgment of the president, Senate, and Court to handle this issue privately–the way it should be handled.