Tenure during good behavior provides a crucial guarantee of judicial independence in the American constitutional system. It also assures the justices discretion in making decisions about whether to remain on the Supreme Court, to resign, or to retire.
Prior to 1869 there was no financial inducement to retire because no retirement compensation was available to the justices. The judiciary act of that year provided full salary for justices who had served at least ten years and had not reached the age of seventy (see Judiciary Act of 1869). But its passage did not persuade Nathan Clifford, the only appointee of President James Buchanan. Clifford was determined to remain on the Court until a Democratic president could appoint his replacement. Justice Samuel F. Miller felt that Clifford's mental failure was obvious, but Clifford died in office three years short of Grover Cleveland's election in 1884.
There were three instances in the mid‐nineteenth century when financial considerations had a bearing on retirement or resignation. The only resignation from the Supreme Court clearly traced to financial causes is that of Associate Justice Benjamin R. Curtis in 1857, although the distrust of some prosouthern colleagues was also an important factor. Ward Hunt, though he had been unable actually to serve for five years, would not resign until Congress passed a special pension bill for him in 1882. Salmon P. Chase died in office in 1873, three years after he suffered a debilitating paralytic stroke. He was ineligible for retirement benefits and inaccurately deemed himself indispensable.
David N. Atkinson made a detailed examination of the deaths, health problems, and resignation and retirement decisions of members of the Supreme Court. His data for the periods of 1789–1864, 1865–1890, and 1937–1975 provide important information for comparison. The first period indicated that advanced age was not necessarily associated with infirmity nor was poor health associated with inclination to resign. Chief Justice Roger B. Taney was described as “frail” for all of his twenty‐eight years on the Court but by determination and careful use of his waning physical resources he remained on the Court until his death at age eighty‐eight. Three major factors have accounted for departure from the Supreme Court. One, death, was involuntary. Most voluntary departures were related to ill health or politics. In many instances, especially in the nineteenth century, a deliberate decision to remain on the Court as long as physical and mental capability permitted was determined by a combination of partisan or ideological factors and personal commitment. After 1838 the average age at which members of the Supreme Court have been selected has been well over fifty years. Age and career status generally combined to reinforce the tendency of justices to view appointment as their final career advancement. Hence, there was little incentive to invoke the statutory options for retirement or resignation until health considerations made it imperative.
There are some characteristics of the historic periods that are distinguishable. Party and ideology contributed to a tendency in the nineteenth century to remain on the Court as long as possible. This tendency was undoubtedly strengthened by the absence, until 1870, of monetary inducements for retirement plus the absence of an informal Court peer group tradition to encourage resignation or retirement because of perceived incapacity. Such a tradition has since developed, but it has not always been successful. For example, Justice Stephen Field initially refused to resign as urged by some of his colleagues in 1897.
There is little evidence that more generous retirement provisions have had much impact upon the retirement choices of members of the Supreme Court. Conversely, extrajudicial activities have led to several resignations in modern times, reflecting greater media, professional, and public insistence on heretofore lightly observed institutional proprieties. Rarely have Court members resigned in order to pursue other political objectives. Charles Evans Hughes, a major exception, resigned to run for president in 1916 and had the rare good fortune to return to the Court as chief justice. Arthur Goldberg was persuaded by President Lyndon B. Johnson to step down to become ambassador to the United Nations. In modern times media attention has become a new factor, but its consequences are largely speculative regarding the encouragement of retirement or resignation. Threatened by impeachment in the late 1960s, William O. Douglas was determined to stay on the bench. Later weakened by physical and occasional mental disability, Douglas initially planned to remain on the Court, hoping for recovery. Only after receiving two separate doctors' negative opinions did Douglas resign in 1975. Douglas resisted media and peer pressures until he realized that recovery was impossible. Conversely, media and partisan political pressure combined with Justice Abe Fortas's own serious violation of institutional proprieties led to his resignation in 1969. While Fortas did consult some of his colleagues and former chief justice Earl Warren, the prospect of impeachment was the underlying determinant of his resignation.
Ultimately, the partisan or ideological inclination to remain on the Court, buttressed by a powerful sense of professional and institutional achievement, have been of most significance throughout the Court's history.
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See also Appointment and Removal Power
Bibliography
- David N. Atkinson, Retirement and Death on the United States Supreme Court: From Van Devanter to Douglas,
University of Missouri Kansas City Law Review 45 (1976): 1–27
— John R. Schmidhauser
