Is the US Supreme Court split of Justices in the wine case as unusual as commentators make it out to be? We think not. For example, Professor Bainbridge has what he intends to look like reasonable legal analysis of why the US Supreme Court Justices decided the “wine case” the way they did, this being allegedly based primarily upon the Justices’ differing views about federal supremacy and states’ rights.
There is, however, a much simpler, stronger and more human explanation.
Except for Justice Thomas, whose opinions tend to be quite geriatric for his age to begin with, the decision was predictable strictly on the basis of the age of the Justices. The oldest Justices, encrusted by their years, opted for the more limited “local comfort” standard of their advanced years, whereas the younger Justices, more alive and kicking by comparison, opted for “a more wide open system”. Put another way, the old ones tend to try to put the clamps on the young ones in any society. Sad to say that this is so, but it is so.
The illusion that legal principles had anything at all to do with this – again – 5-4 decision of this infamous Rehnquist court, is just that, an illusion, a fata morgana.
We repeat our suggestion that there be a mandatory retirement age for judges and Justices, which, as the data below show, should not be above age 70 (Ginsburg is a “youthful” exception).
The majority: (Justice name, age, political party, nominating President)
David H. Souter – 65 R Bush
Stephen G. Breyer – 66 D Clinton
Anthony Kennedy – 68 R Reagan
Antonin Scalia – 69 R Reagan
Ruth Bader Ginsburg – 72 D Clinton
The minority: (Justice name, age, political party, nominating President)
Sandra Day O’Connor – 75 R Reagan
William Rehnquist – 80 R Nixon
John Paul Stevens – 85 R Ford
Clarence Thomas – 56 R Bush