Leaving the Bench

8/10/2019 Leaving the Bench

1/15

Go Geezers Go: Leaving

the Bench

L. A. Powe Jr.

DAVID

N. ATKINSON.

eaving

the

Bench: Supreme ou r t Justices at the End.

Lawrence: University of Kansas Press, 1999. Pp. xiii 248. $29.95.

The dust jacket of David N. Atkinsons Leaving the Bench: Supreme

our t

Justices

at

the

End has the same picture of Thurgood Marshall on the

front and back. The picture, taken

by

ex-Marshall clerk Deborah Rhode, is

a chiaroscuro to a very important persons picture: traditionally a VIP is

centered and well lighted, shoulders squared and eyes focused on the public

viewers. The Atkinson-Rhode Marshall

is

literally slipping off the corner of

his own picture, overwhelmed

by

towering rows of

Supreme

ou r t Reports.

The pictures theme is exhaustion-an undone shirt collar, an unfocused

gaze. It is of a man who has had it, as indeed was the case. Marshall was, he

brusquely told admiring reporters at a retirement press conference,

old

and

coming apart (p. 158).

LEAVING

Leaving the Bench

discusses the deaths of every Supreme Court justice

from John Jay to Marshall (plus the retirements of Byron R. White and

Harry A. Blackmun).

It

explains why each died

on

the Court or resigned

first (retirements became possible in 1937). (No justice has left via im-

peachment, although Abe Fortass resignation probably saved him that de-

served indignity [Powe

2000,

470])3 As such Leaving the Bench

is

a

depressing read, like a continuous requirement to read the last chapter in

L.

A

Powe

Jr. is Anne Green Regents Chair, University of Texas.

1. The book must have been past page proofs when Blackmun died.

2. Of

course Samuel Chase is the only justice to have faced an impeachment trial in the

Senate.

2000 American Bar Foundation.

0897-6546/00/2504-1227 01OO

1227


2/15

1228 LAW

AND SOCIAL INQUIRY

biographies. Atkinson rightly thinks there is (and has been) a problem with

justices who, like Marshall, Roger Brooke Taney, Nathan Clifford, William

Howard Taft, or William 0 Douglas have stayed on the Court past their

time, attempting, in Marshalls words, to outlive those bastards.3 He also

sees a problem with justices who have lost their abilities but cling to their

robes for other reasons (Ball

1998, 378).

Although just a slender 182-page volume (plus three appendixes and

footnotes), Leaving the Bench is a reference tool just filled with information.

The reader can easily find how each justice died and at what age as well as

where he is buried. The book is usefully broken

by

chronological periods:

pre-Civil War, rest of nineteenth century, to 1936, to 1968, and the

present. O ne appendix even tells the average age and tenure of the justices

for each year of the Courts existence. The two oldest Courts were the

Nine

Old

Men in 1937 and the Burger Court in 1986,both averaging 72

years. The most experienced Court was Marshalls in 1834 (before he and

William Johnson died and Gabriel Duvall resigned) with an average tenure

of 19

years.

The

youngest and least experienced twentieth century Court

existed in

1946

after Harold Burton and Fred Vinson were appointed.

The key factor

in

determining whether a justice completed his life

sentence has been retirement benefits. There were none prior to 1869.

Then Congress offered resignation at full salary for justices over 70 with 10

years of service. Ironically, the sitting chief justice, Samuel

P.

Chase, could

not qualify and

so

he remained on the Court barely able to function for

three years (p. 53). The difference between resignation and retirement came

with the Retirement Act of 1937, which lowered the age for ending service

at full pay to 65 (albeit with

15

years of service) but added in the perks of an

office as well as the possibility of service on another court-hence, retire-

ment from the Supreme Court rather than resignation of office.4 During his

exemplary 10-year retirement, Tom Clark sat with every court of appeals in

the nation.

The Retirement

Act

also offered retirement in the case of disability

certified

by

the chief ju ~t ic e. ~harles Whittaker is the

only

justice to have

used this provision. Remembering all too well Whittakers inability to make

3.

No one had more justification than Douglas. Gerald Ford, after all, had been Richard

Nixons point man, trying to impeach Douglas on either trumped-up charges of impropriety or

else for being too liberal. Eleven months after Douglass stroke, with a huge push from the

media and encouragement from his wife Cathy and friends, Douglas resigned. Marshalls view

of Reagan and Bush and Taneys of Lincoln are obvious. Taft, however, was worried about

Herbert Hoover.

I

must stay on the court in order to prevent the Bolsheviki from gaining

control (p. 96). Clifford, the sole member of the post-Civil War Court appointed by a pre-

war Democrat, reviled Rutherford

B.

Hayes. The Four Horsemen were not included in the

sentence because they could still do their jobs.

4.

Any justice not qualifying can retire at half pay. None has.

5

Prior to the change, William Moody and Mahlon Pitney needed special hills to get

them

off

the bench.


3/15

Leaving the Benc h

1229

up his mind, Earl Warren wisely refused to designate Whittaker for any

court even after his disabling depression cleared.

Even including the five Washington appointees who resigned, prior to

the twentieth century a justice was twice as likely to die on the bench as

resign. Supreme Court scholars have long discussed the rigors of circuit rid-

ing. Reading Atkinson one sees it as a factor in early death or resignation

again and again. The southern circuit, and then the western one, prior to

the Civil War were especially arduous, although both William Johnson and

James W. Wayne had 30-plus year careers.

Additionally, the antebellum justices suffered from a remarkable degree

of poor health. There are obviously many explanations, but one I had not

known about was the courtroom in the basement of the Capitol itself. Lack-

ing adequate ventilation,

it

was either

too

hot or too smoky,too chilling

or too damp (p. 44). Atkinson quotes a prominent Washington architect as

saying in 1850 that the death of some of our most talented jurists has been

attributed to this location of the court room, and it would be but common

justice in Congress to provide better accommodations for its sittings (p.

44).

Despite the ill health of antebellum justices, in the post-Civil War

period, the Court endured more personnel difficulty than at any other time

in its history (p. 71). For the rest

of

the century, only David Davis left the

Court in good health, although William Strong, attempting to set a good

example, retired while still able to function well, and Samuel

P.

Miller died

unexpectedly while still in possession of his considerable intellectual facili-

ties. At one time Miller was worried that Alabaman John A. Campbell

would be reappointed6 at the age of

65

and stated that if the appointment

occurred we shall have within five years a majority of old imbeciles on the

bench (p. 56).

In the first third of the twentieth century the ratio of deaths to resigna-

tions was

50-50.

But since the death of Robert Jackson in 1955 (at the time,

the fourth in

six

years), not a single justice has died on the bench-al-

though Hugo L. Black and John Marshall Harlan came close in 1971. Mod-

ern medicine keeps justices alive longer-in the modem era only Harlan,

Potter Stewart, and Fortas left before their 75th birthdays-and helps time

their retirements. Thus, since Clark, only Lewis

H.

Powell was alive a dec-

ade after retiring.

6.

Campbell, appointed by Franklin Pierce in

1853,

had resigned after Fort Sumter

to

return to Alabama. He is the prime reason there was no Confederate supreme court. Although

Campbell

w s

the most distinguished southern jurist, he was wrong on the key issues. He

had freed his slaves on taking his Supreme

Court

seat; he thought slavery was as transitory

institution; he concurred in the result but not Taneys opinion in B e d Scott (1857); and he

publicly opposed disunion.


4/15

1230 LAW AND SOCIAL INQUIRY

While depressing, the demises of the individual justices are treated

well.7 The discussion of Whittakers depression is new, very thorough, and

welcome. Further, an appendix deals with the story

of

the first Harlan going

to Stephen C. Field to convey the need for Field to step down. Harlan

supposedly reminded Field of Fields trip to Robert Grier

30

years earlier,

and Field offered his famous response: a dirtier days work I never did in my

life (p.

183).

Atkinson concludes that any centrality for Field in Griers

retirement (as Fields story to Harlan, who repeated it to Charles Evans

Hughes) is improbable. Others, with greater seniority, had talked to Grier

before Field did. But regardless of the validity of the Field quote, there is no

doubt that Grier was the first justice forced from the bench by his col-

leagues. Subsequent to Grier and Field, Joseph McKenna and Oliver Wen-

dell Holmes were pushed by their colleagues; in the case of the 90-year-old

Holmes, just the suggestion was necessary. No justice had the nerve to sug-

gest Douglas leave because all were aware of his contrarian iron will; a sug-

gestion that he leave would have been taken as a mandate

to

stay. (Thus,

when Fortas and Warren were gone, he was flirting with retirement, but the

Nixon-Ford impeachment effort changed that calculus instantly.)

Political ambition has also played a part in leaving the bench. Jay be-

came governor of New York; Davis was selected senator by the Illinois legis-

lature; Charles Evans Hughes was drafted as the Republican presidential

nominee in 1916; Arthur J. Goldberg was suckered into becoming the am-

bassador to the United Nations (possibly

with

the vice presidency dangled

in the future).8 Douglas spurned offers of the Department of the Interior and

the vice presidency, and John McLean, Levi Woodbury, and Black ( in addi-

tion to Douglas and Hughes) had presidential ambitions. James F. Byrnes

left the Court to be the assistant president during World War

I1

and

thereafter was secretary of state and the governor of South Carolina. John

H. Clarke resigned in 1922 after six years, weary of the Courts work and

desirous to do something important-bringing the United States into the

League of Nations and working for world peace. Unsuccessful in both ef-

forts, he lived in relative obscurity for 23 more years, dying just before the

creation of the UN. While politics has moved vigorous men

off

the Court, it

is hardly a solution to the problem of justices who have stayed

too

long.

7 Possibly a slight exception is treatment of Felix Frankfurters demise, where Atkinson

missed some important facts: Before Frankfurters strokes, President Kennedy tried to induce

Frankfurter to retire if he and Kennedy could agree on a successor. Frankfurter spurned them

(thereby probably denying Paul Freund a seat). Kennedy concluded that Frankfurter believed

himself indispensable-something that Atkinsons

book

demonstrates any number of justices

have come to believe about themselves. But an equally important reason was that Frankfurter

could not see John Kennedy without seeing Joseph Kennedy, and like all sensible people, he

loathed the father (Powe 2000, 211).

8. If it wasnt the vice presidency, then i t was the chief justiceship on Warrens retire-

ment (Powe 2000, 212).


5/15

Leaving the Bench

1231

RELUCTANTLY LEAVING

T he running them e of

Leaving the Bench

is th e reluctance of justices to

retire. T w o reasons-money an d political objectio ns to th e president-have

already been mentioned. Atkinson offers several others: a justices belief

tha t

he

is indispensable

to

either t he Co urt o r nation; family (especially a

spouse) urging the justice to stay

on

because

of

th e atte ndan t loss

of

social

status o n retirement; a lack of any clear idea of what else to do with lifes

remaining years.9

Atkinson basically agrees with a quote he attributes to Taft that the

old men of the Court seldom die and never retire (p.

171).1Yet

his evi-

dence is more ambiguous. H e shows that there was a serious prob lem, just as

the Taft quote describes, but that Congress took action with the Retirement

Act

of

1937

to

solve it,

and

for all appearances save Douglas (for a few

mo nth s) an d Marshall (for a n unspecified time ) th e solution has worked for

two-thirds of a century.11 A tki ns on th us is extrapolating from M arshall and

worried that modern medicine and bureaucracy will cause the solution to

cease working as well.

I t is good that someone worries, because Supreme Court justices appar-

ently dont. Atkinson quotes only Samuel Miller while on the Court as

offering serious thoughts o n th e matter.12 W i t h his characteristic bluntness

Miller stated that there are many matters which ought to be causes of re-

moval that are neither treason, bribery, nor high crimes or misdemean-

ors. . . . Deafness, loss

of

sight, the decay of the faculties by reason of age,

insanity, prostration by disease from which there is no hope of recovery-

these should all be reason for removal (pp. 64-65). Atkinson knows they

wont be an d th at the accepted political decision n ot t o use imp eachm ent as

a means of clearing dead wood from the bench is not going to change. Nor,

9. These options came via a quote from Robert Calvert, former chief justice of the Texas

Supreme Court, but they are amply documented for the Big Court in Atkinsons book.

10.

I

wanted

to

know when Taft said that and went to Atkinsons source, Pringle 1939,

956. Th e words are there, but it is Pringle rather than Taft who uses them. Pringle is discuss-

ing

a

meeting between Taft and Chief Justice Edward White following a meeting between

Taft and President Harding. Writing to a friend, Taft noted that White had said nothing

about retiring. Pringle then continues: The most ancient bromide was proving accurate

again: the old men of the court seldom died and never retired. Taft grew discouraged.

I

asked

my favorite reference librarian, Marlyn Robinson, to see if Taft ever used those words. She

reported that she found no evidence that he did

so.

We all make mistakes, but Atkinsons is

one that ought never be made.

11. Atkinson is aware

of

the controversy about Black near the end, but he sides with the

aged justice.

I

do not (Powe 2000, 261-62, 482). Atkinson seems unaware that Warren had

suggested in 1968 that the older Black join him in yielding to newer blood, something-given

the resentment

it

engendered-Warren would not lightly have suggested. Black, like the first

Harlan before him, wanted Fields longevity record and, as events showed, was willing to die

trying.

12. Hughes and Owen Roberts, after they left the Court (Hughes for the first time),

wrote of mandatory retirement. Taft may also have discussed problems of retirement. See note

10

supra


6/15

1232

LAW AND SOCIAL

INQUIRY

short of a crisis, will a constitutional amendment deal with the problem.

Thus, his final cha pte r searches for ways to ge nerate th e necessary pressures

for a justice to understand wh en it is time t o go.

Atkinson has three proposals to encourage retirements:

1 the

justices

should be more forthcoming abou t heal th problems; (2) th e justices should

exercise self-awareness and informally agree to retire while in good health,

preferably in their mid-70s; and

3 ) the

ties between law clerks and their

justice should be weakened through the creation of a law clerk pool. The

proposals have the attraction of being easily implemented by the justices

themselves. T h a t ought t o explain why no ne is going to happen.

Of course, justices could be more forthcoming about health problems

(including the medications they take), but these are individuals who will

not even allow the televising of their most public function.

I t

seems inco n-

ceivable th at they would offer extensive information abou t their heal th un -

less circumstances made that necessary. Indeed, why should they?

So

tha t

the press could set up de ath (o r retirem ent) watches outside their homes

and put footage of the justice getting into a car on the evening news in

order to create a clamor for th e retirem ent? To promote more specu lation by

the talking heads about who is going

to

retire when to be replaced by

w ho m ? If inform ation is power, i t is ha rd t o see why justices would transfer

some of theirs t o a n equally unac cou nta ble (a nd decidedly less responsible)

fourth estate.

T he re are, however, two situations where, first, justices d o an d will feel

compelled to say something, and, second, they are likely to say it. First, if a

justice cant make oral argument-that is, visibly cant d o pa rt of th e job-

then an explan ation is obligatory. But given work schedules th at make eve n

law professors blush and the limited time allotted for oral arguments, it is

indeed news wh en a justice cant find th e way to the be nch . Second, surgery

in a Washington hospital is hard to keep quiet . Thus, Ruth Bader

Ginz-

burgs recent colon cancer surgery and its outcome were made public

thro ugh terse press releases from th e C ourts O ffice

of

Public Information.

I t

must be note d, however, t ha t he r prior hospitalization in Crete: was no t

disclosed and would not have been were i t not for the Washington surgery.

And she waited three months before disclosing that she was undergoing

both chemotherapy and radiation as postoperative treatment.

There is even less likelihood that an informal tradition will take hold

in wh ich justices retire while o n top, alth ou gh surely all justices subscribe to

it in theory. Alth ough A tkinson may

think

h e sees an evolving tra dition, he

acknowledged that it did not apply to Marshall. Nor will it apply to any

13. Cr ete? Sinc e Saltzburg a nd Tuscany are th e normal summer pasturing areas for the

overworked justices, o ne w onders why Ginzburg was routed t o Cre te. Lack

of

seniority?


7/15

Leaving the Bench 1233

other justice who detests (or has contempt for) the sitting president.4 I t is

well and good to think of justices placing the Court and the national inter-

est ahead of themselves, but a major thesis of Atkinsons book is the

blurring to invisibility of any such distinction. The evidence, if

it

exists,

that we have created a better or more self-aware batch of justices is not

to

be found in Atkinsons book.

Atkinsons third proposal is to pool all the law clerks so that the pro-

tective shield around a failing justice will be weakened, perhaps broken.

Once pooled, the clerks loyalty should be to the institution itself rather

than, as at present, to the justice they serve. Furthermore, the clerks would

have been chosen through an institutional process, not by individual jus-

tices, and they will not necessarily be familiar with the detailed constitu-

tional views of the justice to whom they are temporarily assigned (pp.

178-79).

How the pooled clerks

will

relate to a given justice--properly

jumps to mind-is somewhat unclear, but presumably, by bureaucratizing

clerks there should be added distance between the clerks and justices. At-

kinson would find that distance beneficial especially in the case of a failing

justice.

Again Marshall is Atkinsons cautionary tale. Marshalls four clerks

could go right along producing opinions fully consistent with the opinions

Marshalls clerks produced in the 1970s. They could (and did) change a

mistaken vote

so

that it never became p~b 1ic .l ~ven

if

Marshall had been

totally out of it, his clerks could do everything for him except sit at oral

argument and attend conference-all the while giving the Marshall they

understood total loyalty. Atkinson presumes, perhaps rightly, that pooled

clerks would not.

As wi th

the other two proposals,

I

cannot see the justices adopting this

one. And unlike the other two, I dont believe they should. People in re-

sponsible positions ought to have the right to pick their staff. Although

some justices-Douglas, for instance-could have cared less what their

clerks views were, others wish some ideological affinity.

At

least at the be-

ginning of the term I clerked, Burger was worried his clerks might subvert

his conservatism. That was an unfounded worry, but it is also something

that important individuals ought not be required to have. Atkinson rightly

would like justices to participate more in the art of judging and writing,

but that issue should be addressed by means other than creating possible

14.

Note that despite turnover that typically runs at around

26

months, once the Clin-

ton Administration became a national scandal, no one retired.

15. I think Atkinson makes too much of this. All justices occasionally cast a mistaken

vote, and typically it is corrected without anyone except the other justices, law clerks, and

someone from the clerks office knowing. Indeed, the term

I

clerked, Marshall miscast a vote,

and when the mistake was discovered after a majority opinion had been written, the result in

the case switched. And that former majority opinion can be found in the United

States Reports

s a dissent.


8/15

1234 LAW A ND SOCIAL INQUIRY

suspicions and inefficiencies that would occur with a clerk pool. Nor, given

the likely credentials of the clerks, is it so easy to assume they would not

take the necessary time to familiarize themselves with as much of the juris-

prudence of all the justices as they thought useful.

In

the final two pages, Atkinson dusts off FDRs Court-packing plan

and suggests a couple of modifications that might make it more palatable.

First, he would cap the number of the Court at 11 rather than the 15 FDR

advocated. Second, he would move the triggering age of the sitting justices

to 75. If this modified plan were in place today, the 1999-term Court would

move from

10

(John Paul Stevens is 79 so a 10th would already he sitting)

to 11 with the new addition of Rehnquists heir.

There is a lot to like about using FDRs plan to move out the dead

wood (or, given how it would work in practice, the aged wood). Being re-

sponsible for moving the Court to

10

justices might well cause some to

throw in the towel. On the other hand, a justice who might otherwise have

retired to give a nice president an appointment could, under the plan, give

that president an appointment without himself leaving the bench. Thus

At-

kinsons updated plan could provide a perverse incentive for a justice to stay

longer, all the while (hopefully) gaining one additional vote for favored

positions.

EIGHTEEN

YEARS

A N D

OUT

I t is not clear how any rational society could decide to create a consti-

tutional court, give its members life tenure after senate confirmation, and

nevertheless place no qualifications on the selection

of

the justices. Quite

simply, life tenure for judges is the stupidest provision of the 1787 Constitu-

tion that has any impact today.16 Even if a justice is healthy, it is hard to

understand why an 80 year old would be given so much authority.17 Only in

introducing his modified version of FDRs plan does Atkinson shift from his

concern over enfeeblement to FDRs concern of the philosophical differ-

ences between the Four Horsemen and the New Deal.

The reason why life tenure is the stupidest provision in the Constitu-

tion is that enough is enough. After a while the political circumstances

that gave birth to a Supreme Court nominat ion and confirmation are lost to

history. Society moves along; so should justices. Douglas was appointed dur-

ing the Depression; he exited after the Arab Oil Embargo. Brennan was

appointed just before Russian tanks crushed the Hungarian uprising; he was

~~ ~~ ~ ~

16 In fact

in

the Constitutional Stupidities symposium

of

Consntutional

Commentary,

both Lash LaRue (1995 ) and I (Powe 1 995) wrote th at life tenure was the stupidest existing

provision

17 Thus, the 1986 Burger Court had five justices who had been born during the

Roosevelt Administration-thats Teddys


9/15

Leaving the Bench

still sitting when the Berlin Wall came down. Life

not only

should belong

to th e living, decisions about our society should be made by those who hav e

been granted power by

our

society, not

by

one

our

parents remember.

When democratically determined public policies that directly affect the

nat ion are at issue, it is not unreasonable to expec t that those wh o exercise

judicial review over what is done by the president and Congress be part of

the

present, n ot th e past (p. 227 n.51). Indee d,-with the excep tion of jus-

tices, all others wielding power must seek some form of approval to con-

tinue; this eve n includes corporate executives. CE Os never make it to their

mid-70s; only o ne president has; some in Congress do; yet most justices do.

That

is why

I

believe justices should be retired after a single 18-year term o n

the

Court.

In supporting 1 8 years instead of life,

I

d o not believe

I

am undermin-

ing the imp ortant rationale for life tenure.

I

would

not

want to weaken the

independence of the judiciary.

But

I thin k a n 18-year nonrenewable term

will offer th e necessary in dep end enc e an d give a justice ample t im e to grow

o n th e job.

One response is likely to be wow; think of all we would lose. I view

this as the an ti- N A FT A position: a ch ang e only promotes losses because we

cannot know what the gains might be. Still, lets query what the losses are.

Let m e run a dozen twen tieth -ce ntu ry justices throug h my 18-year proposal

and see what gets cut.18 I want to give special attention to Holmes and

Brandeis because the re is probably more agreement on the ir positive stature

th an o n any oth er twentieth-century justices.

Un der my proposal Holmes had t o leave the Court in 1920 (a t the age

of

80), 1 2 years before his actu al retirem ent. W e lose some classic dissents:

Gitlow

v

New York (1925) ,

Adkins v

Childrens Hospital (1923), Tyson

Brothers

v Bunton

(1927) , Truax

v

Corrigan (1921). But are they really

losses? Brandeis also wrote a dissent in Truax

Adkins

and

Tyson

Brothers

were just extensions, albeit good ones, of Holmess Lochner dissent (1905).

And

beyond Holmess inability to distinguish betw een advocacy and incite-

ment, there is nothing in

Gitlow

that was not better said in his Abrams

dissent (1919)-not to m enti on th e benefits the First Amendment might

have gained from Brandeis writing in both Gitlow and Whitney (1927). Fur-

thermore, h ad Holm es retired in 1920, h e would hav e been saved from his

imbecilic opinion in

Buck

v

Bell

(1927) (as well as his solo

Meyer

v

Ne-

braska

dissent [1923]). My message: Holmes h ad already said his piece w ith

his Lochner,

Hummer

v Dugenhart (1918), and

Abrums

dissents.

1235

18.

I

recognize that

I

have created an infinite number of imponderables; therefore,

I

am

not pondering them. Like an economist,

I

am wishing away all contrary variables. Thus, for

these purposes the only effect of retirement is to lose the opinions (but not the results) that

would have been written by the justice. Schapiro (1999,564-65 n.18) attempts to add some

variables.


10/15

1236

LAW AND SOCIAL INQUIRY

How about Brandeis, then? First

off,

he only loses five years from his

career, and

with

the exception of

Erie

Railroad v Tompkins 1938) what

mattered most about those five years was his vote, not any opinions he

wrote. Even if one wants to make cases for his concurring opinions in

St.

Josephs Stock Yards Co.

v

U.S.

(1936)

and

Ashwander

v

T V A

1936),

the

true corpus of Brandeiss work as well as all his great opinions occurred

before I would have retired him: Truax

v Corrigan

(1921),

New State Ice v

Liebmann (1932), Liggett v Lee

(1933),

Quaker City Cab v Pennsylvania

(1928),Jay Bum s Baking v Bryan (1924), and his two greatest hits, Whitney

(1927) and

Olmstead

v

U.S.

(1928).

I am inclined to claim victory right here.

If

my proposal leaves Holmes

and Brandeis unscathed, then the presumed downside is not the equivalent

of staring into the abyss.

But

lets continue anyway.

Harlan Fiske Stone loses three years, and those would cost

him

Hirabyashi 1943) and his Schneidermun dissent

(1943))

both indicating that

United States

v

Carolene Products

(1938) was not the all-purpose roadmap

some have claimed.

I t

would also have saved him from becoming chief

jus-

tice and the unfavorable comparisons to the more efficient Hughes. Early

retirement thus could have been a real plus for Stone.

Both Black and Felix Frankfurter would have left the Court in the mid-

1950s. Like Stone, Frankfurter might have benefited by losing

his 1958

switch on the domestic-security cases as well as avoiding participation in

Baker v Carr (1962) (Powe 2000, 141-42). Black, by contrast, loses his

great First Amendment opinions attacking Harlan-Frankfurter balancing.

But he also loses his later First Amendment opinions holding that trespass

trumps speech. Douglas, the other important New Dealer exceeding 18

years,19 presents an interesting case because with an 18-year term, it seems

inconceivable that Roosevelt would have appointed the 40-year-old genius

or that Douglas would have accepted the

job.*O

My

guess is that an 18-year term would have led both Warren and

Powell to stay on the Court for the couple of extra years. Probably no one

would object. That, in turn, might have saved Fortas from his disaster; and

who knows about the Bork to Ginzburg to Kennedy play in placing Powell?

Eighteen years would not have meant much with White or John Paul

Stevens either. White would have gone out in 1980, but who would have

noticed or cared? Indeed, there were persistent rumors beginning in the

1970s that he might leave the Court to head the FBI. Had he retired in

19.

Reed exceeded my limit by a little under 13 months.

20. Gulp. This would mean that I would never have clerked and probably not been

given a chance at the University

of

Texas. Continuing on the plus side, however,

I

am sure

that some deserving eastern overdog from Harvard

or

Yale would have enjoyed his clerkship.

His?

You

bet; this

w s

1970, when only Douglas had previously hired a woman clerk, and

some justices, like Brennan, thought a woman clerk would signify the end of Western

civilization.


11/15

Leaving the Bench

1237

1980, he might have found a job for which his considerable talents were

well suited. Stevens would have retired in 1994, well past demonstrating his

complete hostility to religion and relatively close to the high point of his

career in Collins v City of Harker Heights (1992).

An early retirement (in 1988)probably would have modestly helped

Blackmun. He had already shown his affinity for the themes that have

marked his career, and he would have been saved from his embarrassing

confusion

of

himself and the Constitution in Webster (1989) and Planned

Parenthood v Cusey (1992). Indeed, he would have gone out near to his

excellent dissent in Bowers v Hardwick (1986). On the other hand, his

retirement conversion on the machinery of capital punishment would either

have been lost or occurred six years earlier.

Rehnquist may well be a loser because he would not have been pro-

moted to the center seat on Burgers retirement. Thus, his reputation as an

efficient chief justice would be lost, as would his being the only person in-

volved in the Clinton impeachment who came out with a n enhanced repu-

tation. His structuralism and views on federalism were in place before 1990,

but they have flourished during the time

I

would have retired him. And of

course we would have missed seeing the spiffy gold stripes on his uniform.

The justice who (along with Douglas) would be most affected is Bren-

nan , who would have faced retirement in 1974, well before the affirmative

action cases and before he signaled his hard shift to separationism in

church-state matters. Also, in 1974 there would have been a real debate

about how Brennan fit with his liberal brethren from the Warren Court.

Th e extra

16

years leave no room for debate tha t he was the most important

jurist of th e second half of the twentieth century. Without a doubt

he

would

have been the big loser under my proposal.

Even taking this recitation at face value, a complete answer may be

that the 16 years of Brennan more than compensates for the extra (and bad)

years of all the others. I have some sympathy with this rebuttal, although I

suspect it is not held

by

those of the political right. And

I

have little doubt

about what liberals will say regarding Antonin Scalia in 15 years (when he

exceeds my 18-year cutoff by a decade) or how they feel about the prospect

of Justice Clarence Thomas having an 80th birthday party at the Court.

Maybe Brennans example wont seem so bright then.

IF

NOT EIGHTEEN

YEARS

THEN

TWO CLERKS

Like Atkinson, I agree tha t a constitutional amendment incorporating

the relevant move from life tenure will only happen if a crisis occurs and

maybe not even then. Therefore, like Atkinson,

I

have wondered if any-

thing short of amendment might ameliorate the situation, and I flirted with

Court packing as well, but I backed off when I concluded it might offer


12/15

1238

LAW AN D SOCIAL INQUIRY

perverse incentives to stay.

M y

only other idea goes to law clerks. In funding

the Court, Congress should authorize only enough funds for each justice to

have two law clerks.2 Hard as it may be to believe in these days of three

and four law clerks per justice, two was once enough for an even larger

number

of

decisions by opinion than the Court currently produces.

Through the

1946

term each justice had a single clerk. Then for the

next 24 years, all but Douglas took a second clerk.22 In the mid-1960s

Harlan, with his eyesight fading, gained a third clerk, something the chief

justice already enjoyed by commandeering Stanley Reeds clerk.23 Then in

the summer of

1970

Burger hired six new clerks to bring all associate justices

except Blackmun to three clerks. Douglas, however, rejected his Burger

clerk-Robert Gooding (from Michigan)-and so Blackmun got three.

Later on Burger authorized Douglas to add a second clerk to be selected as

Douglas wished, and thus Dennis Brown (from

UCLA)

became Douglass

second clerk. A year later Douglas joined everyone else with three clerks.

Then with the 1974 term Powell went to four, and the rest followed in the

1977

term, when Burger got more money. Publication of

The Brethren

(Woodward and Armstrong 1979) caused Stevens to drop back to two. Sub-

sequently both Stevens and Rehnquist stabilized at three, while the others

have kept four. Just before the others caught up with him on clerks, Powells

chambers became the first to move to the Wang data-processing system. A

couple of years later all the clerks typewriters passed into history, as every-

one followed Powells lead.

While the Court was adding clerks, the number of petitions for review

was climbing from

1,202

in the 1950 term, to 1,911 in the 1960 term, to

3,318 in the 1970 term, to 4,241 in the 1980 term, to 5,412 in the 1990

term (and

7,015

in the 1998 term).24

The

number of cases disposed of by

opinion, however, was relatively stable

in

those randomly selected terms,

going from a low of 114 in the 1950 term to a high of 141 in the 1970 term.

That stability, however, changed under the leadership of Chief Justice

Rehnquist and the addition of the Bush-Clinton justices, so much so that

fewer than 100 cases-indeed for the 1999 term it appears to be around

75-are now decided by opinion. But the quadrupled group of law clerks

works just as hard as their elders did to produce 25% fewer opinions than

21. Appropriations for the Cou rt are lump sums-in 1997 , 29,245,000-limited only

in wh at can be spent for official receptions and what can be spent

($10,000)

for th e purpose

of

transporting Associate Justices (111 Stat. 2488 [1997]).

22. Douglas opted for something important-a second secretary.

23. A retired justice gets a clerk; for the m ost part tha t clerk winds up working at least

part of the time for a sitting justice. But for the remainder of this essay,

I

am going

to

cease

counting clerks

for

retired justices because th e numbers and dispositions varied.

24. All the statistics are from the Haruard h w Reuiews Supreme Court issue (Note

1951, 1961, 1971, 1981, 1991, and 1999).


13/15

Leaving

the

Bench

1239

half their elders normally did.25 Parkinsons law requires that work expand

to fill the time available for its completion, and even the Court is bound by

that law-which is less a problem now that the battle over history requires

the ill (or un)trained clerks to rummage through less familiar materials to

garnish the opinions.

My proposal to cut back on staffing harkens back to Brandeiss famous

dictum that Supreme court justices are respected because they are almost

the only people in Washington who do their own work (p. 176). If indeed

justices are respected in Washington today, it is not because they still do

their own work. To be sure, they go to oral argument and conference and

vote. But how much they participate in the creation of the Courts written

opinions is unclear. Surrounded by their faithful law clerks, this generation

of justices has no Brandeis or Douglas or Jackson producing opinions in his

own hand-with distinctive literary styles. For th e most part the justices are

editors, good and very active ones perhaps, but editors nevertheless.

Recent clerks have assured me that clerks work long hard hours, and so

do their justices (summer vacations excepted). Thus, they say, cutting back

on the number of clerks necessarily means cutting back on something else

too. Lets assume that is correct. Wh at would get cut back? It cant be the

docket, but maybe

the

justices could further reduce the number of cases

decided by opinion. Although one might conclude they have already done

this as much as possible, the nation (if no t necessarily the litigants and some

academics) has survived anyway and probably could survive a further reduc-

tion. If it became too much, the justices would be shamed into adding a

little more time to their busy schedules.

More likely, however, would be a cut back in the length of opinions,

the number

of

separate opinions, probably accompanied

by

less historical

ornamentation. T he typeface in

the

United States Reports could return to its

pre-1976 term readable size.26 Can someone say pareto optimal?27

The assumption that cutting clerks means cutting output is not neces-

sarily true if the new system were more efficient than the current one.

I t

might be. After all justices know their own writing style, and if they are

used to producing opinions in their own words, they could be decidedly

more efficient in doing so than each years bevy of freshly minted clerks.

Writing also may clarify and deepen thought, eliminating verbosity in the

process. One might claim that the greater number of clerks producing fewer

opinions has had the beneficial effect of making those opinions better. But

~

25.

In

the case of Blackmun clerk Sarah Cleveland, the elder in question was her father,

26. Thus

it was not the jump from three to four clerks that caused the reduction in type

27.

On

seeing this sentence, one former clerk stated, Justices cant; if

you

want some-

Buddy Cleveland, a former Black clerk.

size between volumes 427 and 428.

one who can, youve got

to

keep the law clerks.


14/15

1240

LAW AND SOCIAL

INQUIRY

while one might claim that, I am not that one, and

I

have never heard a

single person make that claim.

To

be sure, some justices would find the opinion-writing chore clisa-

greeable or harder as they age, and they might do less of it. But here my

point has merged with Atkinsons. At a time that the work seems onerous

and the clerks cant produce enough of acceptable quality,

it is

time to re-

tire. If my proposal would encourage an octogenarian, even one as revered

as Brennan, to leave a little sooner, then good. Brennan never was a Robert

Jackson-because no one could be-but to see how far his collective writ-

ing had slipped from the ideal, just compare

Texas v Johnson (1989)

with

West Virginia v

Bumette

1943).

Of course, like Atkinsons nonconstitutional proposals, my idea of

reinventing writing is not going to occur. The monetary savings in drop-

ping to two clerks do not even reach trivial, and cutting back on clerks

would be seen for what it is-a direct slap at the justices. Atkinsons con-

cern, however, is well taken. If we do nothing about it-and nothing is

exactly what will be done-Atkinson has nevertheless authored a very

handy reference work which will be available should others suddenly share

his-or my-concern.

REFERENCES

Ball, Howard. 1998. A Defiant Life. New York: Crown Publishers.

LaRue,

L. H.

1995. Ne ither Force Nor Will. Constitutional Commentary 12:179-82.

Note. 1951. The Supreme Court, 1950

Term.

Hurward Law Rewiew 65179.

.

1961. The Supreme Court, 1960 Term. Harward Law Rewiew 75335.

. 1971. T he Supreme Court, 1970 Term. Harvard Law

Review

85346.

1981. Th e Supreme Court, 1980 Term. Harvard

Law Review

95:342.

.

1991. The Supreme Court, 1990 Term. Harvurd Law

Review

105:423.

. 1999. The Supreme

Court ,

1998

T e r m .

Harvard Law

Review

113:406.

Powe, Lucas A. Jr. 1995. Old People and Good Behavior. Constitutional Commentary

.

2000. The Warren Court and American Politics. Cambridge, Mass.: Harvard U ni -

Pringle, Henry F. 1939.

The

Life and Times of Willram Howard Taft Vol. 2. New York:

Woodward, Robert, and Armstrong, Scott. 1979. The Brethren. New York: Simon and

Schapiro, Robert A. 1999. Must Joe Robinson Die?

Constitutional

Commentary

12: 195-97.

versity Press, Belknap Press.

Farrar and Rinehart.

Schuster.

16561-67.

Ahums

v.

United States,

250

U S . 616 (1919).

Adkins v

Childrens Hospital, 261 U S . 525 (1923).


15/15

Leaving the Bench

1241

Ashwander v

Tennessee

Valley Authority, 297

U.S.

288 (1936).

Baker v Cam, 369 U S . 186 (1962).

Bowers v Hardwick, 478

U.S.

186 (1986).

Buck v Bell, 274 U S . 200 (1927).

Collins v City of arker Heights, 503 U S . 115 (1992).

Dred Scott

v

Sandford, 60 U S . (19 How.) 393 (1857).

Erie Railroad

v

Tompkins, 304 US . 64 (1938).

Gitlow w New

Ymk,

268 U S . 652 (1925).

Hummer v Dagenhart, 247 U S . 251 (1918).

Hirabyushi v United States, 320 U S . 81 (1943).

Jay Burns Baking w Bryan, 264 U S . 504 (1924).

Liggett v

Lee,

288 U S . 517 (1933).

Lochner w New York, 198 US 5 (1905).

Meyer pi Nebraska, 262 US 90 (1923).

New State Ice v Liebmann, 285 U S . 262 (1932).

Olmstead

v

United States,

277

U S .

438 (1928).

Planned Parenthood v Casey, 505

US

33 (1992).

uaker City

Cub Co. v Pennsylvania, 277 U S . 389 (1928).

Schneidermun v United States, 320 U.S. 118 (194 3).

St. Joseph's Stock Yards Co. v United States, 298 U S . 38 (1936).

Texas v Johnson, 489

U.S.

397 (1989).

ruax v Conigan, 257 U.S. 312 (1921).

Tyson Brothers v Banton, 273 U S . 418 (1927).

United States v Carolene Products Co., 304 US 44 (1938).

Webster v Reproductive Health Services, 452 US. 450 (1989).

West Virginia v Barnette, 319 U S . 624 (1943).

Whitney

v

California,

274 U.S. 357 (1927).

Documents

Leaving the Bench