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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Most United States Supreme Court Justices Have Lacked Prior Judicial Experience

In response to my earlier post about Chief Justices of the United States Supreme Court who were also the Court’s senior justice in terms of years of service, Nick Zales posed the question as to whether the late William Rehnquist was the only Chief Justice to have had no prior judicial experience before becoming a member of the Supreme Court. (While Rehnquist had served for 13 years as an Associate Justice of the Supreme Court before being elevated to the Chief position, that was his only prior judicial experience.)

As it turns out, Rehnquist shared a lack of prior judicial experience with a majority of the men who have held the nation’s highest judicial office. Altogether, nine, or slightly more than half, of the 17 men who have held the position of Chief Justice were appointed without prior judicial experience.

Moreover, of the eight who had previously been judges, several had very limited judicial experience. Edward White, for example, had served for only a single year on a state court, and that had been fourteen years prior to his appointment to the United States Supreme Court. The judicial service of the first Chief Justice, John Jay, constituted two years as the Chief Justice of the New York Supreme Court a decade before his appointment as the U. S. Supreme Court. The current Chief Justice, John Roberts, served for only two years and three months as a federal judge before his elevation to the Supreme Court in 2005.

While prior judicial experience appears to have become a prerequisite for a Supreme Court appointment in our own time, historically, there clearly was no such requirement. None of the men appointed Chief Justice in the 19th century (Marshall, Taney, Chase, Waite, and Fuller) possessed any prior judicial experience, and only four of the eight appointed in the 20th century (White, Taft, Vinson, and Burger) had previously served as judges at any level below the Supreme Court.

Moreover, other than the three who were promoted from the ranks of Associate Justices (White, Stone, and Rehnquist), only three Chief Justices (Rutledge, Burger, and Roberts) were sitting judges at the time that they were appointed Chief Justice, and one of them, John Rutledge, had his appointment rejected by the Senate, requiring him to step down after less than six months in office.

Several of the best known Chief Justices—John Marshall, Roger Taney, Charles Evans Hughes, and Earl Warren—had no prior judicial experience at all before their appointment to the Supreme Court, but this lack of time on the bench did not work to deny them entry into the pantheon of great Supreme Court justices.

The following chart summarizes the prior judicial experiences, or lack thereof, of the 17 Chief Justices.

 

John Jay (1789-1795) –former Chief Justice of the New York Supreme Court.

John Rutledge (1795-1975)—member of the South Carolina Court of Chancery, the South Carolina Court of Pleas, and prior service on the United States Supreme Court.

Oliver Ellsworth (1796-1800) – member of the Connecticut Superior Court.

John Marshall (1801-1835) – no prior judicial experience.

Roger Taney (1835-1864) – no prior judicial experience.

Salmon Chase (1864-1873) – no prior judicial experience.

Morrison Waite (1974-1888) – no prior judicial experience (declined appt. to the Ohio Supreme Court).

Melville Fuller (1888-1910) – no prior judicial experience.

Edward White (1910-1921) – served one year on the Louisiana Supreme Court before being appointed an Associate Justice of the United States Supreme Court in 1894.

William Howard Taft (1921-1930) – member of the Ohio Superior Court and the U.S. Sixth Circuit Court of Appeals, in addition to a four-year stint as President of the United States.

Charles Evans Hughes (1930-1941) – no prior judicial experience before his appointment to the Supreme Court in 1910. Resigned to run for President of the United States in 1916. Reappointed, 1930.

Harlan Fiske Stone (1941-1945) – no prior judicial experience.

Fred Vinson (1946-1953) – served on the United States Circuit Court for the District of Columbia.

Earl Warren (1953-1969) – no prior judicial experience.

Warren Burger (1969-1986) – served on the United States Circuit Court of Appeals for the District of Columbia.

William Rehnquist (1986-2005) – no prior judicial experience other than years as Associate Justice.

John Roberts (2005- ) — served on the United States Circuit Court of Appeals for the District of Columbia.

 

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John Paul Stevens’ Restraint

After he retired in 2010, John Paul Stevens published Five Chiefs: A Supreme Court Memoir.  After a brief description of the first twelve Chief Justices of the United States Supreme Court, from John Jay through Harlan Fiske Stone, he describes in more detail the last five with whom he was professionally acquainted.  Stevens clerked for Wiley Rutledge, after earning the highest GPA in the history of Northwestern Law School, during the 1947 – 48 Term when Fred Vinson was Chief Justice.  Stevens was in private practice in Chicago, sometimes teaching antitrust law at the University of Chicago, when Earl Warren presided over the Court.  It was during this time, however, that he argued his only case before the Court.  In Five Chiefs, he notes that the most memorable aspect of his experience as an advocate before the Court was the sheer proximity of the Justices.  Though the distance between the lawyer and the bench is over six feet, Stevens felt sure that “Chief Justice Warren could have shaken my hand had he wished.”

Details like this provide an inside glimpse of the Court.  Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument.  Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him.

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