Deciding to Leave

Deciding to Leave: The Politics of Retirement from the United States Supreme Court

     by Artemus Ward

[This review appeared in the Spring 2004 issue.]

Given the intensity of speculation about future nominations to the Supreme Court, surprisingly little attention is paid to just how the necessary vacancies arise.  Even when a vacancy does occur, it is scarcely noticed for itself – by that time the departing justice is yesterday’s man.  “There will be more interest in who will succeed me than in my passing,” sighed Sherman Minton in 1956.  “I’m an echo.” 

Perhaps because justices do not discuss their retirement plans, the dynamics of the retirement decision are little understood even by close students of the Court.  In Deciding to Leave Artemus Ward (not the pseudonymous 19th-century humorist, but a political science professor at Northern Illinois University) brings a historical perspective, an array of detail, and an intermittently engaging style to a serious consideration of this narrow but intriguing topic, with entertaining and informative results.

In addition to a justice’s age and health, Ward writes, four major variables influence the decision, carrying different weight in different periods.  The most important one in recent times has been the changing statutory provision for the justices’ retirement and pension.  Another is more personal – how pleasant or arduous does the job itself feel to the justice, how much satisfaction does it provide him, how much does he dread idleness, how much does he (or his family) care about keeping the prestige of his office?  Third are institutional concerns – for example the burden a failing justice places on the others, or the inhibition of an already existing vacancy.  And fourth is the justice’s opportunity to influence the choice of his successor.

In the Court’s earliest period – until 1801 – the most important factor in determining when justices left office was the requirement that they ride the circuits, a task exhausting in a way not easy for us to understand today.  Especially in the southern circuit, it took six months a year of travel on horseback or in bone-jarring, unheated (and uncooled) carriages, on roads that were not only unpaved but were sometimes scarcely roads at all, over swollen streams and rivers on rickety rafts and ferries, sometimes even in horse-drawn sleighs, lodging by pestilential swamps in fever season, or in backwoods inns where, as Justice Thomas Johnson put it, “the most moderate Desires are disappointed.”  Justice Samuel Chase wrote to Justice Iredell in 1797 that he “fear[ed] the journey” from Baltimore to Savannah (650 miles by modern interstate highway), and asking if it could be done in 20 days.  This demanding duty drove many justices from the bench after only a few years’ service. 

In 1801 the new Jeffersonian government made circuit riding optional.  For decades to come many justices felt obliged to do it anyway, but it ceased to drive them to leave the Court.  Instead they tended in the next period (until 1869) to stay on until they died, because there were no pensions for them if they left.  From 1801 until 1868, 20 justices died in office and only four resigned (including Justice Campbell, who left to serve the Confederacy).  A number of justices stayed on the court because they were penniless and in debt – even though the salary was low, the lifetime appointment was their only resource.  Justice Wilson was twice jailed for debt while in office; Samuel Chase went bankrupt and died crushed with debt from real estate speculation – men in these circumstances could not afford to resign.  Worse, the lack of a pension made it difficult to persuade justices to retire (such as the mentally ill Baldwin) who were what we would now call disabled.

In 1869 another radical Congress again ameliorated conditions for justices, finally creating a pension for the office in an effort to get some justices (especially the disabled Grier and Nelson) to retire.  Under the Retirement Act a justice with 10 year’s federal judicial service could retire at 70 and keep for life the same salary he had had on the bench.  This basic formula evolved in stages into the current “Rule of 80,” under which any federal judge can retire when his age and years of service equal 80, or earlier if disabled.  Adjustments to the pension system encouraged justices to leave in a timely way; so did additional refinements such as permitting them to take senior status (from 1937), which protected them from much-feared idleness and preserved some of their status.  “When a man retires,” moaned Justice McKenna in 1922, “he disappears and nobody cares for him.”

But despite these attractions, improved working conditions – the discretionary docket, the increasing use of law clerks, “cert pooling” to reduce the labor on certiorari petitions – led many to stay as long as they could.  Modern medicine made long service in good health possible for many more justices than was the case in the 19th or early 20th centuries – “gravel and gout,” for example, are no longer incapacitating as they were for Justice Ellsworth in 1800.  In the 19th century Justices Stevens, O’Connor and Ginsburg would probably all have died of illnesses now safely behind them.  And although even in the modern era some (Whittaker, Douglas, Harlan II, Marshall) stayed longer than they should have, it has become much easier for a justice to go when he feels the time is right.  No justice has died in office since Robert Jackson in 1954.1]

As practical concerns ceased to force justices either to leave or to stay, they became more able to time their departures so a sympathetic president would have the appointment.  This sort of maneuvering has happened throughout the Court’s history.  Some – Duval, Swayne, Hunt and Brandeis among many others – even influenced who their successors would be.  This is where Deciding to Leave goes a bit off the track.  Professor Ward seems convinced that “succession politics,” as he calls it, now dominates the justices’ retirement calculations, and that elaborate and sometimes mutually defeating steps need to be taken to prevent justices from timing their retirements strategically.  He suggests, for example, raising the retirement age, or deliberately increasing the workload by decreasing the provision for law clerks, or amending the Constitution to impose mandatory retirement. 

But there is no principled reason why justices should not have the right to time their departures.  It is a political power, to be sure, but inherent in the lifetime appointment.  The discretionary docket is a political power too, but no one thinks the justices should not have it.  And there is also no reason to think that strategic retirement is a current problem.  In 2000 suspicious pundits wrote that Justice O’Connor chose Bush over Gore so she could retire in a Republican administration, but now in the next election year (when justices traditionally do not retire) neither she nor Chief Justice Rehnquist has left the court, as many expected they both would do.  Similarly Justice Stevens had many years to give his seat up to President Clinton, but did not do it.  Indeed, no justice has retired since Justice Blackmun in 1994.2] Justice Thurgood Marshall tried as hard as he could not to leave under a Republican President – he instructed his clerks that if they found him dead at his desk they were to “prop him up and keep on voting” – but he ended up doing it anyway.

Deciding to Leave has some other flaws as well.  As a political scientist, Professor Ward cannot resist erecting structures and “regimes,” sorting out facts to match his structures, repeating them much more than he needs to, and illustrating them with unnecessary graphs (although the tables are interesting and useful).  And the book could have benefited from more careful proofreading and even fact checking (who was President Andrew Tyler?  The Supreme Court was not Justice Thomas’ first judicial office). 

But the book succeeds well in its main goals.  It is clearly and involvingly written and invitingly presented – what used to be called a “good read.”  It really does provide an understanding of the forces which have influenced decisions to leave over the Court’s entire history, gives a flavor of the atmosphere of the Court in many periods, and covers in some depth such important episodes as Justice Douglas’ frantic attempts to keep participating in decisions after retiring.  There is a generous helping of inside baseball – one example out of many is Justice Swayne’s plot to make his resignation dependent on the nomination of a different judge than the President favored – “a nice little plan” Justice Miller called it, “but complex and may fail of carrying out.” 

Ward considers every justice’s circumstances individually.  By drawing on original sources, mainly letters of the justices and their contemporaries, he is able to present vivid and evocative vignettes of each of them, including a few whose fame has survived to this day and many more now utterly forgotten.  Through an eyewitness, for example, we see Justice Cardozo on his deathbed in 1938, “in delirious moments [going] over and over again old decisions and court cases.”  Just after Pearl Harbor Justice Byrnes, despondent on the Court when the action was elsewhere, wrote to Roosevelt that he “was thinking so much about those ships sunk at Pearl harbor that it was difficult to concentrate on [oral] arguments about ships that were built … in 1918.”  The second Justice Harlan wrote toward the end that his life “has been all work” and that he had “never felt loved.”

The voices of the justices come through clearly in the book.  Sometimes they are brief and peremptory.  When someone dared to inquire about Justice Field’s health, he snapped “I don’t write my opinions with my leg.”  When Justice Frankfurter heard that Chief Justice Vinson had died, he said “This is the first indication I have ever had that there is a God.”  In 1993 Justice Thomas said “the liberals made my life miserable for 43 years, and I’m going to make their lives miserable for 43 years.”

But to his credit Ward does not limit his quotations to quick bons mots.  He reprints longer extracts from such acute analysts of court politics as Taney, Story and Taft.  Here’s Justice Miller, writing in 1875:

I feel like taking it easy now.  I can’t make a silk purse out of a sow’s ear.  I can’t make a great Chief Justice out of a small man [Waite].  I can’t make Clifford and Swayne, who are too old, resign, nor keep the Chief Justice from giving them cases to write opinions in which their garrulity is often mixed with mischief.  I can’t hinder Davis from governing every act of his life by his hope of the Presidency …

And Chief Justice Taft wrote to his brother in 1929:

I am older and slower and less acute and more confused.  However, as long as things continue as they are, and I am able to answer in my place, I must stay on the court in order to prevent the Bolsheviki from getting control.

One of the principal pleasures of Deciding to Leave is the chance to read – almost to hear – the unguarded and deeply personal comments of the extraordinarily articulate men who have served on the Court.

But here’s what we all want to know: can we use the structural elements and decision factors Professor Ward has identified to predict future retirements?  In a word, no – Ward himself has tried it, but without success.  As Chief Justice Rehnquist told Charlie Rose about his own retirement plans, “Well, that’s for me to know and you to find out.  That’s what we used to say on the playground when I was growing up.”

  1. [Note: this was written before Chief Justice Rehnquist died in office in 2005.  DFP
  2. [Note: Justice O’Connor has since retired. DFP