Judicial tenure on the U.S. supreme court, 1790-1868: Frustration, resignation, and expiration on the bench

Studies in American Political Development

Volumn 20, Issue 2, 2006, Pages 198-210

  Vining Jr , Richard L ^a   Zorn, Christopher ^b   Smelcer, Susan Navarro ^a  

^a EMORY UNIVERSITY   (United States)

^b UNIVERSITY OF SOUTH CAROLINA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33845914585     PISSN: 0898588X     EISSN: 14698692     Source Type: Journal    
DOI: 10.1017/S0898588X06000101     Document Type: Review

References (95)

1. Justice O'Connor's departure was delayed as a result of her stated preference to serve until the confirmation of her successor. Although Judge John Roberts was initially selected for her seat, the death of Chief Justice Rehnquist resulted in Roberts' appointment to that post. O'Connor's retirement was further delayed by the unsuccessful nomination of Harriet Miers as her successor and the lengthy nomination process of Judge Samuel Alito. Alito was ultimately confirmed on January 31, 2006, with Justice O'Connor assuming senior status the same day.
2. See Peter Baker, "O'Connor Leaving Supreme Court After 24 Years," Washington Post, 3 July 2005.
3. See Linda Greenhouse, "William H. Rehnquist, Architect of Conservative Court, Dies at 80," New York Times, 5 Sept. 2005. Prior to Rehnquist's death while in active service, the most recent justices to expire on the bench were Chief Justice Fred Vinson in September 1953 and Justice Robert Jackson in October 1954.
4. For example, Joan Biskupic, "Despite Illness, Chief Justice Administers Oath," USA Today, 21 Jan. 2005;
5. George Will, "Liberals, Lawyers, and a Choice: A Second Bush Term Might See Landmark Reform in Domestic Affairs," Washington Post, 15 Oct. 2004.
6. See, for example, Deborah J. Barrow and Gary Zuk, "An Institutional Analysis of Turnover in the Lower Federal Courts, 1900-1987," Journal of Politics 52 (1990);
7. Timothy Hagle, "Strategic Retirements: A Political Model of Turnover on the United States Supreme Court," Political Behavior 15 (1993);
8. Jessica Perry and Christopher Zorn, "The Politics of Federal Judicial Retirements" (working paper, University of Michigan School of Law, 2006);
9. Peverill Squire, "Politics and Personal Factors in Retirement from the United States Supreme Court," Political Behavior 10 (1988);
10. and Christopher Zorn and Steven R. Van Winkle, "A Competing Risks Model of Supreme Court Vacancies, 1789-1992," Political Behavior 22 (2000). When temporal divisions have been included, they have often been of little or no theoretical basis. For example, Squire chose the Civil War as a point of demarcation, while Barrow and Zuk did the same with World War II in their study of the lower courts. While those conflicts were obviously major events in American history, it is unlikely that either had a direct and prolonged impact on the departure behavior of federal judges.
11. For example, David Garrow, "Mental Decreptitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment," The University of Chicago Law Review 67 (2000).
12. A notable exception is Saul Brenner, "The Myth That Justices Strategically Retire," The Social Sciences Journal 36 (1999).
13. For example, changes in the Court's jurisprudence with the passing of John Marshall and the ascension of Roger Taney to the Chief Justiceship are evidenced by the shifting orientation of the Court's decisions. One clear departure from Marshall Court jurisprudence can be found Taney's majority opinion in Proprietors of Charles River Bridge v. Proprietors of Warren Bridge (1837). Writing for the Court, Taney established a jurisprudence mandating the strict construction of contracts, which diverged from Marshall's more expansive interpretation in Fletcher v. Peck (1810) and Trustees of Dartmouth College v. Woodward (1819). In another example, turnover in associate justice positions between 1835 and 1861 established a heavily Democratic, states' rights regime, as evidenced by the Court's majority decision in Dred Scott v. Sanford (1857) and the adoption of a philosophy of "dual federalism."
14. See Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (Lanham, MD: Rowman and Littlefield, 1999);
15. William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (Columbia: University of South Carolina Press, 1995);
16. John A. Maltese, The Selling of Supreme Court Nominees (Baltimore, MD: Johns Hopkins University Press, 1995).
17. See, for example, William Mishler and Reginald Sheehan, "Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective," Journal of Politics 58 (1996);
18. Roy Flemming and B. Dan Wood "The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods," American Journal of Political Science 41 (1997);
19. Micheal Giles, Richard Vining, and Bethany Blackstone, "The Supreme Court in American Democracy: Unraveling the Linkages between Public Opinion and Judicial Decision-Making," presented at the Annual Meeting of the Midwest Political Science Association, 7-10 Apr. 2005, Chicago, IL.
20. Lawrence Baum, "Membership Change and Collective Voting Change in the United States Supreme Court," Journal of Politics 54 (1992).
21. On this point, see William E. Hulbary and Thomas G. Walker, "The Supreme Court Selection Process: Presidential Motivations and Judicial Performance," Western Political Quarterly 33 (1980);
22. Jeffrey A. Segal, Richard J. Timpone, and Robert M. Howard, "Buyer Beware? Presidential Success through Supreme Court Appointments," Political Research Quarterly 53 (2000);
23. and David A. Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (Chicago: University of Chicago Press, 1999).
24. Kevin T. McGuire, "The Institutionalization of the U.S. Supreme Court," Political Analysis 12 (2004).
25. The details of these many moves are catalogued in Catherine Hetos Skefos, "The Supreme Court Gets a Home," The Supreme Court Historical Society Yearbook (1976).
26. See Stanley I. Kutler, Judicial Power and Reconstruction Politics (Chicago: University of Chicago Press, 1968). The justices' circuit riding duties were fully and formally abolished in 1911.
27. Federal Judicial Center, "Landmark Judicial Legislation," http://www.fjc.gov.
28. Theda Skocpol, Protecting Soldiers and Mothers (Cambridge, MA: Harvard University Press, 1992).
29. See William Graebner, A History of Retirement (New Haven, CT: Yale University Press, 1980).
30. Joshua Glick, "On the Road: The Supreme Court and the History of Circuit Riding," Cardozo Law Review 24 (2003).
31. See Justin Crowe and Christopher F. Karpowitz, "Where Have You Gone, John Hessin Clarke? The Disappearing Short-Term Supreme Court Justice," presented at the Annual Meeting of the Western Political Science Association, 16-19 Mar. 2006, Albuquerque, NM.
32. Since 1954, justices have been eligible to retire with full salary for life once reaching 65 years of age and 15 years of service or 70 years of age and 10 years of service; in 1984 this provision was broadened to allow retirement at any combination of age and years of service that sums to 80 once a justice is 65 years old. See 28 U.S.C. § 371-375 and their occasional amendments for statutory language defining retirement eligibility and benefits.
33. The significance of pensions as a determinative factor in departures from the federal bench is echoed by Albert Yoon, who notes that "even accounting for changes in judicial salaries (in constant dollars), pension qualification trumps all factors" (Yoon, "Pensions, Politics, and Judicial Tenure: An Empirical Study of Federal Judges, 1869-2002," American Law and Economics Review 8 [2006]).
34. For examples of the former, see David Atkinson, Leaving the Bench (Lawrence: University of Kansas Press, 1999);
35. David J. Danelski, A Supreme Court Justice Is Appointed (New York: Random House, 1964);
36. Charles Fairman, "The Retirement of Federal Judges," Harvard Law Review 51 (1938);
37. Merlo J. Pusey, "The Court Copes with Disability," Yearbook: Supreme Court Historical Society 4 (1979);
38. and Emily Field Van Tassel, Why Judges Resign: Influences on Federal Judicial Service, 1789 to 1992 (Washington, DC: Federal Judicial Center, 1993).
39. Examples of the latter include Earl Callen and Henning Leidecker, Jr., "A Mean Life on the Supreme Court," American Bar Association Journal 57 (1971);
40. Sidney S. Ulmer, "Supreme Court Appointments as a Poisson Distribution," American Journal of Political Science 26 (1982);
41. and W. Allen Wallis, "The Poisson Distribution and the Supreme Court," Journal of the American Statistical Association 31 (1936).
42. King, Gary, "Presidential Appointments to the Supreme Court: Adding Systematic Explanation to Probabilistic Description," American Politics Quarterly , 15 (1987).
43. Leonard P. Baker, John Marshall: A Life in Law (New York: Macmillan, 1974, 539).
44. See Barrow and Zuk, "An Institutional Analysis of Turnover in the Lower Federal Courts, 1900-1987";
45. David C. Nixon and J. David Haskin, "Judicial Retirement Strategies: The Judge's Role in Influencing Party Control of the Appellate Courts," American Politics Quarterly 28 (2000);
46. and James F. Spriggs II and Paul J. Wahlbeck, "Calling It Quits: Strategic Retirements on the Federal Courts of Appeals, 1893-1991," Political Research Quarterly 48 (1995).
47. For instance, religion, race, and sectional concerns have been paramount in many judicial nominations. Sectionalism was particularly important in the days of circuit riding, and some Supreme Court seats came to be identified with representation from particular states. See Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton;
48. Maltese, The Selling of Supreme Court Nominees.
49. We consider the identity of the president paramount, rather than merely his partisanship. The American party system changed significantly over the time period we study, and factions sometimes suffered from sizeable ideological schisms. Justices' political loyalties appear to have been driven primarily by their views on the great issues of the day - in particular, nation-state relations. For example, the former Federalists of the Court came to embrace the nationalist wing of the Democratic-Republicans after their party's collapse (see Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court [New York: Simon and Schuster, 1970], 281-82), and many eventually aligned with the Whigs. Through biographical information and examinations of their jurisprudence it is possible to ascertain justices' ideological affiliation (or lack thereof) with the presidents of the period. We adopt a similar approach for the composition of the Senate. For an extensive discussion of the Marshall Court and its place in party politics,
50. see Mark Graber, "Federalist or Friends of Adams: The Marshall Court and Party Politics," Studies in American Political Development 12 (1998).
51. On Marshall, see Adrienne Siegel, The Marshall Court, 1801-1835 (Millwood, NY: Associated Faculty Press, 1987), 200;
52. on Duvall, see Fairman, "The Retirement of Federal Judges," 406.
53. Story's efforts to hold out are documented in Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court (Albany: State University of New York Press, 2003), 61-64. Notably, holding out was not restricted to efforts to outlast presidents, and even evident behavior to prevent particular presidents from nominating a justice's successor was not exclusively the result of ideological opposition. Justice Duvall, for example, simply disliked Andrew Jackson despite his Democratic loyalties and refused to step down until assured an acceptable successor. Duvall eventually resigned when informed that Roger Taney would be nominated for his seat.
54. On this point, see Thomas G. Walker, Lee Epstein, and William J. Dixon, "On the Mysterious Demise of Consensual Norms in the United States Supreme Court," Journal of Politics 50 (1988),
55. and Gregory A. Caldeira and Christopher Zorn, "Of Time and Consensual Norms in the Supreme Court," American Journal of Political Science 42 (1998).
56. In addition, operationalizing workload by counting justices' written opinions or written dissents poorly measures the activity of justices in this era. Such counts take no consideration of circuit activity, which was a substantial component of early justices' duties.
57. Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1993), 30.
58. See Leonard P. Baker, "The Circuit Riding Justices," Supreme Court Historical Society Yearbook (1977)
59. and Marcus Maeva and James R. Perry, The Documentary History of the Supreme Court of the United States 1789-1800 (New York: Columbia University Press, 1989).
60. An additional complaint was the problem of justices' circuit court decisions later being appealed to the Supreme Court, sometimes resulting in problematic conflicts of interest and, in some cases, difficulty in assembling a quorum of justices.
61. See Robert Mason, Namesake: Alfred Moore 1755-1810, Soldier and Jurist (Southern Pines, NC: Moore County Historical Association, 1989), 31;
62. and Edward S. Delaplaine, The Life of Thomas Johnson (New York: Grafton House, 1927).
63. Historians have discovered a unique result of the southern circuit's unpleasantness. Justice James Iredell won the support of his colleagues in an initiative to have their salaries lowered by $500 annually in exchange for relief from circuit duties, but the proposition did not win congressional support. However, beginning around 1794-1795, the justice who rode the southern circuit was awarded a $100 payment from his colleagues for his trouble (Willis Whichard, Justice James Iredell [Durham, NC: Carolina Academic Press, 2000], 180-84). This was not an insignificant sum, as the justices' annual salary at the time was only $3500. It is not known how long this practice persisted.
64. Along with the harsh conditions in the southern and western circuits, the distance justices traveled in those circuits could itself be grueling. For example, before the reorganization of the circuits in 1842, Justice John McKinley rode the Ninth Circuit, composed of Alabama, Arkansas, Louisiana, and Mississippi, a trip totaling over 10,000 miles per year. The distance and conditions of McKinley's southern circuit responsibility varied greatly from those of Chief Justice Taney, who traveled only 458 miles per year through Maryland and Delaware in the Fourth Circuit. See John P. Frank, Justice Daniel Dissenting: A Biography of Peter V. Daniel, 1784-1860 (Cambridge, MA: Harvard University Press, 1964), 275.
65. Donald G. Morgan, "The Origin of Supreme Court Dissent," The William and Mary Quarterly 10 (1953), 361.
66. Morgan, "The Origin of Supreme Court Dissent," 362.
67. David J. Danelski, "The Influence of the Chief Justice in the Decisional Process of the Supreme Court," in Sheldon Goldman and Austin Sarat, eds., American Court Systems: Readings in Judicial Process and Behavior (San Francisco: W. H. Freeman & Co. 1978).
68. Cf. Thomas N. Chirikos and Gilbert Nestel, "Occupational Differences in the Ability of Men to Delay Retirement," The Journal of Human Resources 26 (1991);
69. Mark D. Hayward, William R. Grady, Melissa A. Hardy, and David Sommers, "Occupational Influences on Retirement, Disability, and Death," Demography 26 (1991).
70. Notably, Supreme Court appointees in this early period were on average 5-8 years younger than their more recent counterparts. The mean age of an appointee prior to 1869 was just under 50 years of age; this includes the appointment of Justice Story at the young age of 32. This compares to an average appointment age of 57.7 years during 1869-1936, and of 54.3 years from 1937 to the present. Importantly, however, the average duration of tenure has been relatively constant over time, despite the lack of institutional incentives to step down prior to the 1869 Act.
71. While normalizing income to reflect proportion of earnings potential or relationship to personal wealth may yield stronger statistical results, such information is not consistently available. An additional complication is the role of justices' personal or family wealth; affluent justices may have been less dependent on their judicial salaries than their colleagues. Unfortunately, even approximate net worth of early justices is not presently available on a systematic basis.
72. On these points, see generally Irvine Loudon, Western Medicine: An Illustrated History (New York: Oxford University Press, 1997);
73. and James C. Riley, Rising Life Expectancy: A Global History (New York: Cambridge University Press, 2001), 81-121.
74. Contrast Fairman, "The Retirement of Federal Judges," 405;
75. with Atkinson, Leaving the Bench,
76. Garrow, "Mental Decreptitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment";
77. and Pusey, "The Court Copes with Disability."
78. Quoted in David L. Annis, "Mr. Bushrod Washington, Supreme Court Justice on the Marshall Court" (Ph.D. diss., University of Notre Dame, 1974), 204.
79. See Charles Page Smith, James Wilson: Founding Father 1742-1798 (Chapel Hill: The University of North Carolina Press, 1956), 373;
80. and John E. O'Connor, William Paterson: Lawyer and Statesman 1745-1806 (New Brunswick, NJ: Rutgers University Press, 1979), 260-62; respectively.
81. On Jay's governorship in New York, see Clare Cushman, Supreme Court Justices: Illustrated Biographies, 1789-1995 (Washington, DC: CQ Press).
82. McClean's presidential aspirations are documented in Francis P. Weisenburger, The Life of John McLean: A Politician on the United States Supreme Court (Columbus: Ohio State University Press);
83. more generally, see Allen Sharp, "Justices Seeking the Presidency," Journal of Supreme Court History 29 (2004).
84. See Dunne, Justice Joseph Story and the Rise of the Supreme Court, 281-82;
85. and Sharp, "Justices Seeking the Presidency."
86. Kevin T. McGuire, "Are the Justices Serving Too Long? An Empirical Assessment of Tenure on the U.S. Supreme Court," Judicature 89 (2005), 7-8.
87. On this point, see Graber, "Federalist or Friends of Adams: The Marshall Court and Party Politics."
88. Specifically, we reviewed biographical entries in Cushman's Supreme Court Justices: Illustrated Biographies, 1789-1995;
89. and in Leon Friedman and Fred L. Israel, The Justices of the United States Supreme Court: Their Lives and Major Opinions (New York: Chelsea House Publishers, 1997),
90. as well as biographies of individual justices listed on the "Library List" of the Supreme Court Historical Society; the latter can be found online at http://www.supremecourthistory.org/04_library/subs_list/04_d.html. Note that many justice's biographies simply do not give substantial attention to jurists' personal lives, illnesses, and overt political activity, choosing instead to focus on such things as their written opinions, jurisprudential influence, family history, or lives before and after Supreme Court service. The variety of scholarly disciplines from which biographers have come no doubt contributes to the several approaches in their studies.
91. McGuire, "The Institutionalization of the U.S. Supreme Court."
92. See, for example, the analysis of adult mortality in Massachusetts in Mary Vinovskis, "Mortality Rates and Trends in Massachusetts Before 1860," The Journal of Economic History 32 (1972).
93. Whether a minor illness occurred or a given ailment was chronic or catastrophic in a given year is admittedly somewhat subjective. To assess the level of consistency with which we coded infirmity and our remaining variables, we conducted a reliability analysis of 12 randomly selected judges. A total of 229 justice-years in five categories (infirmity, coercion, ambition, holdout behavior, and justice-executive copartisanship) were coded a second time, with an overall intercoder reliability of 97.6 percent. Of those variables, infirmity was the most difficult to code reliably, with a reliability of 91.7 percent.
94. Note that the effect of caseload should be to increase the probability of voluntary departure, but should have no impact on those due to mortality. Thus, its aggregate effect on both types should also be positive, albeit relatively small.
95. Interestingly, our data indicate that there were no instances of "holdout" justices also being pressured to depart the bench.