Supreme Court Justices Today Are Unlikely to Die with Their Boots On

Since 1789, 102 men and one woman have left the United States Supreme Court after varying periods of service. Forty-seven of the 103 died while still on the Court, while the other 56 retired.

Dying in office was once a much more frequent occurrence than it has been in the modern era. Of the 57 justices appointed to the Supreme Court prior to 1900, exactly two thirds (38) died in office. In contrast, since that time, 39 of 46 justices (85%) have left the Court by retirement.

Moreover, over the past 60 years, dying while still on the bench has become quite rare. Since Justice Robert Jackson died unexpectedly in 1954, 23 justices have left the Court and only one, Chief Justice William Rehnquist, died while still on the bench. For the half century between 1955 and 2005, there was not a single death of a sitting Supreme Court justice.

Why was it so much more common for justices to die in office during the Court’s earlier history?

A shorter life span for the justices is clearly part of the answer. Seventeen of the first 38 justices to die while in office died prior to their 70th birthday, and four of these, Wilson (56), Iredell (48), Trimble (52), and Barbour (58), died before reaching the age of 60. In contrast, the six justices who have retired since 1990—Souter (age 69), Stevens (90), O’Connor (75), Blackmun (85), White (76), and Marshall (83)—had either reached, or were approaching, their 70th birthdays at the time they stepped down.

Stricter pension eligibility requirements may also have been a factor in the reluctance of earlier justices to resign. For most of the 19th century, Supreme Court justices were eligible for a retirement pension only if they were 70 years old and had served on the Court for more than 10 years.

The best example of the impact of this rule can be seen in the case of Supreme Court Justice Ward Hunt. Hunt was appointed to the Court in 1872 by President Grant, but suffered from ill health that required him to miss part of the 1877 and 1878 terms of the Court. Then, in January 1879, he suffered a paralyzing stroke that left him incapable of speaking.

At the time of his stroke, Hunt was 68 years old and had served on the Court for six years. Although his affliction left him incapable of hearing cases or writing opinions, Hunt refused to resign from the Court for three years until Congress finally passed a special amendment to the federal pension laws that allowed him to retire. Hunt then retired immediately and lived in Washington for another four years, supported by his pension.

Other early justices chose to remain on the Court in spite of debilitating illnesses for political reasons. For example, in early 1880, Justice Nathan Clifford also suffered a stroke that left him debilitated. However, rather than resign, Clifford, a Democrat, chose to remain on the Court even though he could not participate in the deliberations in hopes that a Democrat would be elected president in the fall of 1880 (and could then appoint his successor). When Republican James Garfield was elected instead, Clifford still refused to resign and instead pinned his hopes on recovery. However, he never regained his health and died on July 25, 1881, a little more than three weeks after President Garfield was shot by the assassin, Charles Guiteau.

The performances of Supreme Court justices at the end of their careers has been a topic of interest to political scientists and legal scholars. Perhaps the most thorough study of that phenomenon is Artemus Ward’s Deciding to Leave: The Politics of Retirement from the United States Supreme Court (2003). Our own Professor Chad Oldfather and Todd Peppers of Roanoke College explore the issue as it applies to chief justices in a forthcoming article in the Marquette Law Review.

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The Court of Appeals Speaks in the Recall Case

Today, the District IV Court of Appeals issued an opinion that reverses a ruling by the Waukesha County Circuit Court denying a motion to intervene in the case of Friends of Scott Walker v. Brennan.  The practical impact of today’s Court of Appeals decision is that the committees seeking the recall of Governor Walker and other Republican officeholders will be permitted to intervene in the case of Friends of Scott Walker v. Brennan.  As a result, all of the legal rulings made by Judge Davis subsequent to his denial of the motion to intervene must be vacated, so that these legal issues can be reargued with the participation of the recall committees.

This means that Judge Davis’ earlier ruling, interpreting the statutory procedures for recalls under Section 9.10, is now vacated.  On January 5, 2012, Judge Davis ordered the Government Accountability Board (GAB) to take affirmative steps to identify and strike any recall signatures that are fictitious, duplicative or unrecognizable.  Because of this earlier ruling, the GAB went ahead and adopted new procedures, purchased new signature recognition software, and sought additional time in which to review the recall petitions.

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Collecting Judges, Past and Present

Tom Shriner’s recent remembrance of Judge Dale Ihlenfeldt said to law students and new lawyers that “you can—must—learn the lessons of the law (and life) from everyone, not just your professors, but your colleagues, your adversaries, your clients, and even from judges.” This last (neatly phrased) is the case, in my estimation, both of judges whom one knows and of others whom one has never met. One should collect judges, as Tom and I say to the students in our courses.

Two whom I have collected in my time in Wisconsin are Chief Justice Shirley S. Abrahamson and Seventh Circuit Judge Diane S. Sykes, L’84. While I have previously alluded to their friendly competition with one another on the Wisconsin Supreme Court, as it seemed to me, I do not seek to remember them here: They are very much with us. Rather, each herself had occasion in the U.S. Courthouse in Milwaukee, in the past year or two, to remember a late predecessor and friend: Judge Myron Gordon (pictured here, courtesy E.D. Wis.) in Chief Justice Abrahamson’s case, and Judge Terence T. Evans, L’67, in Judge Sykes’s. With permission, I wish to share these remembrances here.

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