Resignation and retirement and the Supreme Court

Description: United States Supreme Court justices may either resign or retire from their positions. Typically, justices who retire from the Court do not engage in further judicial or political activities. Unlike members of Congress and the president, federal judges do not have a fixed tenure. The only process mentioned by the Constitution for removing judges is by impeachment following a conviction of treason, bribery, or other high crimes and misdemeanors.

Significance: Supreme Court justices have lifetime tenure, and many remain on the Court until they die rather than resign or retire. Those who resign frequently pursue other legal careers.

United States Supreme Court justices may either resign or retire from their positions. Typically, justices who retire from the Court do not engage in further judicial or political activities, although those who resign often do. Resignation or retirement takes on added significance in the case of Supreme Court justices because the Constitution mandates that judges of the Supreme Court, as well as those inferior, must exhibit exemplary behavior. Therefore, unlike members of Congress and the president, federal judges do not have a fixed tenure. The only process mentioned by the Constitution for removing judges is by impeachment following a conviction of treason, bribery, or other high crimes and misdemeanors. Most vacancies on the Court resulted from the death of the incumbent. In its history, approximately half of the justices who served on the Supreme Court died in office.

Resignation

Relatively few justices have resigned from the Court. Some justices elected to leave the Court because they were dissatisfied with some aspect of their work on the Court. For example, Thomas Johnson (1791–1793) and Alfred Moore (1800–1804) were unhappy with the requirement that members of the Court perform duties as circuit judges simultaneously with their Court duties.

Other justices have resigned to accept or seek another office. John Rutledge (1790–1791), one of George Washington’s initial appointees to the Court, resigned without ever reviewing a case to become chief justice of the Court of Common Pleas in South Carolina. Chief Justice John Jay (1789–1795) left the Court upon being elected governor of New York. Similarly, David Davis (1862–1877) terminated his judicial career following his election as the U.S. Senator from Illinois. Charles Evans Hughes (1910–1916) resigned his position as an associate justice in 1916 following his acceptance of the Republican nomination for president. After being defeated by Woodrow Wilson, Hughes was later appointed chief justice (1930–1941) by President Herbert Hoover, becoming the only person to serve at two different times on the Court.

James F. Byrnes (1941–1942) and Arthur J. Goldberg (1962–1965) left the Court to accept positions in the Franklin D. Roosevelt and Lyndon B. Johnson administrations, respectively. Byrnes appeared to have found the work on the Court less interesting than he had anticipated and desired to return to the more challenging political life he had abandoned when he accepted Roosevelt’s appointment some months earlier. President Johnson prevailed on Goldberg to accept an appointment as US ambassador to the United Nations, a position that had become vacant after the death of Adlai Stevenson.

Ill health led to the decisions of John Blair, Jr. (1790–1795), Oliver Ellsworth (1796–1800), Gabriel Duvall (1811–1835), and Charles E. Whittaker (1957–1962) to leave the Court. Benjamin Curtis (1851–1857) apparently resigned over dissatisfaction with the Scott v. Sandford (1857) decision, and John A. Campbell (1853–1861) resigned when his native state of Alabama seceded from the union. John H. Clarke (1916–1922) ended his career after only six years on the Court to devote his time to securing the entry of the United States into the League of Nations. Finally, Justice Abe Fortas (1965–1969) resigned because of alleged ethical improprieties while serving on the Court.

Retirement

Before 1869, there was no statutory provision for pension benefits for Court justices. In that year, Congress enacted legislation permitting justices to retire at age seventy with ten years of service on the judiciary. Between 1869 and 1921, seven retirements occurred; fourteen between 1921 and 1969; nine after 1969. In 1937 President Franklin D. Roosevelt proposed that for every justice over the age of seventy who did not retire within six months, an additional justice would be appointed to a maximum of fifteen. Although the Court-packing plan was not approved, Congress did liberalize pension benefits for federal judges. Under the law, judges might retire as early as age sixty-five provided they met certain length of service requirements.

Within four years of the enactment of this legislation, four members of the Court retired. Advanced age or physical infirmities often prompted retirement. No doubt these factors were instrumental in the retirements of Justices Lewis F. Powell, Jr. (1972–1987), William J. Brennan, Jr. (1956–1990), Thurgood Marshall (1967–1991), and Harry A. Blackmun (1970–1999). Justice Tom C. Clark (1949–1967) retired when his son, Ramsey Clark, was nominated as attorney general of the United States. The elder Clark recognized the awkward situation presented by his continuance on the Court under these circumstances.

Finally, there is some evidence that justices may try to time their retirement so as to permit a president of their own party or philosophically compatible with them to name their successor. Nathan Clifford (1858–1881) stayed on the Court as long as he could in the hope that a Democratic president would appoint his successor. He died in 1881 with a Republican in the White House. Earl Warren (1953–1969) may have timed his retirement to allow Johnson to choose his successor as chief justice rather than permit Richard M. Nixon, the Republican likely to follow Johnson in office, to make the appointment. If that was Warren’s motivation, it did not succeed; Johnson’s choice of Fortas to succeed him failed to win approval in the Senate, and Nixon later named Warren’s successor, Warren Burger. Justice Stephen G. Breyer announced his retirement from the Supreme Court in January 2022, and President Joe Biden then nominated Ketanji Brown Jackson to fill the vacated seat.

With the stature of the Court firmly established, the prestige of membership on the Court widely recognized, and the conditions of service more attractive than in the nineteenth century, resignation became uncommon. The established pattern is for justices to remain on the Court until death or retirement. Prior to William H. Rehnquist's (1972–2005) death in 2005, no member of the Court had died in office since 1954, and no justice has resigned since 1969. Since Rehnquist, Antonin Scalia (1986–2016) died in office in 2016, and Ruth Bader Ginsburg (1993–2020) died in office in 2020.

Bibliography

Abraham, Henry. Justices and Presidents: A Political History of Appointments to the Supreme Court. New York: Oxford University Press, 1985.

Baum, Lawrence. The Supreme Court. 8th ed. Washington, D.C.: CQ Press, 2004.

Cramton, Roger C., and Paul D. Carrington, eds. Reforming the Court: Term Limits for Supreme Court Justices. Durham, N.C.: Carolina Academic Press, 2006.

Friedman, Leon, and Israel, Fred, eds. The Justices of the Supreme Court: Their Lives and Opinions. 5 vols. New York: Chelsea House, 1997.

Liptak, Adam. "Justice Breyer to Retire from Supreme Court." The New York Times, www.nytimes.com/2022/01/26/us/stephen-breyer-retire-supreme-court.html. Accessed 9 Jun. 2022.

Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993.

Savage, David G., ed. Guide to the United States Supreme Court. 4th ed. Washington, D.C.: Congressional Quarterly, 2004.

Ward, Artemus. Deciding to Leave: The Politics of Retirement from the United States Supreme Court. Albany: State University of New York Press, 2003.