Would the most learned scholar among us even suggest that when the drafters of the United States Constitution (the Constitution) established life tenure for United State Supreme Court (the court) Justices, they contemplated that period might one day exceed what was then considered a normal lifespan? Had they the ability to fathom the maladies that often accompany extended longevity, might they not have deemed life tenure on the high court counterproductive, if not detrimental, and not in the best interest of the country?
There is a certain narcissism and arrogance that often attends old age. Knowledge, experience and the tedium of repetition might easily result in the perfunctory application of conclusions born of some prior philosophical discussion rather than adherence to the constitution.
Indeed the court has presumed to update the Constitution by considering cases in a contemporary context so that the case law, established by the ruling, is more consistent with the court’s perception of the times.
This is no doubt easier than actually applying the Constitution; and more expedient than allowing the congress to do its job. Arguments presented to the court, which are not specifically addressed by the Constitution, should be referred to the congress for action. In that it is the court’s prerogative whether or not to hear a case, its election to hear a case more appropriately referred to the legislature, is based solely on its desire to arbitrate a particular dispute and, in many cases, to establish a new social order.
The problem is this action circumvents the constraints of the Constitution and the separation of powers; usurps the authority of the congress; and, when conflated with the impunity of life tenure, creates an omnipotent entity with infinite longevity. An unelected body that wields more power than the executive and legislative branches combined; and, the more the court wields this power, the less circumspect it is about doing so.
Just as the court presumed to decide the 2000 presidential election, it is now posed to legislate the question of same gender matrimony. Associate Justice Ruth Bader Ginsburg indicated as much when she suggested that members of the gay, lesbian, bisexual and transgender (lgbt) subculture should perhaps be considered a suspect class.
It is this capricious remark that begs the question, “how old is too old to sit on the high court?”.
These people have no particular immunity to the effects of aging and it is a fact that the older people get the less inclined they are to observe propriety.
Suppose Ginsburg were not a seventy nine year old justice but a fifty year old district court judge; before her is a very androgynous, effeminate male who is suing an athletic club to which he held a membership through a group plan at his place of employment.
The man had accompanied a group of his co-workers to the club, the first time he attempted to use it. He was ejected by the manager because gays were not allowed in the club. The man is not suing for discrimination, he is suing for slander because he says he is not gay.
Would not Judge Ginsburg require some legal definition of gay and some established method for determining whether or not someone was gay? If she were the man’s lawyer, would she not demand it?
Why then would Justice Ginsburg be any less competent?
The more a person does something with favorable results and minimal to no negative consequences, the more likely they are to repeat it; and less likely to regard it as wrong; take Bernie Madoff, for example.
The fact is homosexuality is a behavior in which some people choose or are compelled to engage. It is not unlike gambling in that some people choose to gamble while others are compelled to do so.
Jim McGreevey, Larry Craig and Mary Cheney clearly demonstrated that persons with an affinity for homosexual behavior are not biologically precluded from functioning normally. There is no evidence that their progeny differ fundamentally from anyone else.
The scope of homosexuality has never been scientifically established. The catholic priests, no doubt, had homosexual proclivities prior to entering seminary; but this assertion has neither been proven nor disproved. The cause of homosexuality has never been established so that a correlation between the priests and other lgbt members cannot be discounted.
Persons who engaged exclusively in homosexual behavior arbitrarily chose to call themselves gay. The lgbt subculture defines itself and everyone else. Cynthia Nixon is on the record saying she chose to be gay. Lgbt forced her to recant and say that she was born bisexual. By what authority can they make that assessment?
The fact is people engage in homosexual behavior either by choice or compulsion. Any preclusion from normal sexual interaction with members of the opposite gender is imposed by their own minds. Lawrence v. Texas provides that people in this country have the legal right to choose to engage in such behavior. The law also provides for treatment for those who are compelled to engage in the behavior but would rather not. The law does not oblige society to sanction or embrace the behavior as normal. Same gender sodomy is not normal human behavior.
A homosexual lifestyle is antithetical to the mores and traditions of the American culture. It is in diametric opposition to the tenets of marriage.
So then the question is would a fifty year old district court Judge Ginsburg have suggested destroying American democracy by violating the tenth amendment to the Constitution, as Vaughn Walker did in California (granted, Walker’s motivation was self serving and speaks more to where his loyalties lie); and as a seventy nine year old Supreme Court Associate Justice Ruth Bader Ginsburg proposes to do? In other words, “how old is too old?”.
The court has a fondness for considering questions in the context of modern advancements. Perhaps it is time to consider life tenure in the context of today’s lifespan expectancy.