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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
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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.
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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.
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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).
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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
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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?
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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.
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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
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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.
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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.
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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
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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).
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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.
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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.
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Life and Times of Willram Howard Taft Vol. 2. New York:
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Schapiro, Robert A. 1999. Must Joe Robinson Die?
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Commentary
12: 195-97.
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v.
United States,
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U S . 616 (1919).
Adkins v
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1241
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v
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