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‘The time has come’: The fraught history of lifetime tenure for Supreme Court justices

The Founders didn’t envision the issues posed by aging justices who weren’t ready to retire, one scholar says.

Supreme Court justice Oliver Wendell Holmes Jr., one of the great minds of legal history. In 1932, when Holmes was 90 years old, his colleagues asked him to retire. (Library of Congress) (LOC)

When Alexander Hamilton sat down to bang out the Federalist papers in the late 1700s, there were no antibiotics, no dialysis machines, and certainly no timepieces capable of taking an electrocardiogram (which also didn’t exist).

Well-educated people had average life spans of around 40 years and had to contend with viruses and diseases that festered in close quarters in a world without sanitation workers.

“When visiting the sick,” the College of Physicians advised in 1792, “use vinegar or camphor on your handkerchief.” Also: “Burn gunpowder. It clears the air.”

And so in Federalist Paper No. 78, in which Hamilton argues for lifetime tenure for Supreme Court justices in hopes of guaranteeing their independence, the future Broadway star probably could never have imagined any justice living past the prime of their mental and physical abilities.

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Like Justice Nathan Clifford, appointed at age 54 in 1858.

According to a University of Chicago Law Review article titled “Mental Decrepitude on the U.S. Supreme Court,” when Clifford arrived for the fall term in 1880, a colleague wrote this: “Judge Clifford reached Washington on the 8th [of] October a babbling idiot. I saw him within three hours after his arrival, and he did not know me or any thing, and though his tongue framed words there was no sense in them.”

Or Justice Henry Baldwin, who after being hospitalized for “incurable lunacy” in 1832 returned to the court, where he was described by another justice as “partially deranged at all times,” according to the law review article. He served another decade.

Or even Thurgood Marshall, the first African American member of the court, who in his early 80s had difficulty pronouncing the word “subsidiary” from the bench and on multiple occasions, including in a death penalty case, became so confused that he voted for the wrong parties, according to news accounts and court memoirs summarized in the Chicago law review article.

The debate over life tenure is an old one, and it typically reappears when justices reach their later years and serious health problems emerge, as is the case now with Justice Ruth Bader Ginsburg.

Now 85, Ginsburg has missed weeks of oral arguments while recovering from surgery for lung cancer. The court says Ginsburg is cancer-free and intends to return to the bench — just as she did after two previous bouts with cancer.

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The issue of age has “kind of morphed into something I don’t know that the Founders necessarily could have envisioned,” said Artemus Ward, a political scientist and author of “Deciding to Leave: The Politics of Retirement from the United States Supreme Court.”

Ward’s book details how the country wound up the life tenure system for Supreme Court justices — and the problems that sometimes emerge.

It’s a long story that starts with precedent. Countries older than the United States were handing out life tenures well before Hamilton had the idea. So. if Britain did it, the founders thought, why not us, too?

The Constitution even echoes King George III, who in 1761 recommended life tenure for judges so long as they upheld “good behavior.” Article Three of the United States Constitution, in laying out federal judicial power, does not specifically say the words “life tenure” but instead says judges “shall hold their Offices during good Behaviour.”

It’s worth noting that in the court’s earliest years, being a Supreme Court justice wasn’t the gig it is today.

Justices were required to hear cases in other parts of the country, making for some arduous journeys. And they didn’t have a great deal of power until the Marbury v. Madison decision in 1803 established the concept of judicial review, giving judges the power to rule on the constitutionality of laws and government action.

How unattractive was the job? In the early days, some justices didn’t bother showing up for work. John Jay, the country’s first chief justice, left to run for governor of New York.

George Washington’s Supreme Court nominees were confirmed in two days. Only half showed up to work on time.

But as their power grew, justices tended to serve longer and longer.

“And that’s where we get into the problem of justices who are outliving their usefulness,” Ward said.

So Congress came up with an idea: pensions. That induced some justices to retire, but the pension wasn’t exactly easy to get it. "

“For most of the 19th century,” wrote the late legal historian J. Gordon Hylton, “Supreme Court justices were eligible for a retirement pension only if they were 70 years old and had served on the Court for more than 10 years.”

That produced problems such as justice Ward Hunt. In 1879, a stroke left him unable to speak. But he was only 68 years old and a justice for six years.

“Although his affliction left him incapable of hearing cases or writing opinions,” Hylton wrote, “Hunt refused to resign from the Court for three years until Congress finally passed a special amendment to the federal pension laws that allowed him to retire.”

Congress addressed this problem by sweetening the retirement jackpot, as well as lowering the age and other requirements for drawing full pensions.

But then a new problem emerged, according to Ward: Justices began timing their retirements to coincide with presidential administrations more likely to appoint someone like them.

The question of how long to hold on — for love of the job and for political reasons — is not one that any justice relishes, and it can lead to some profoundly painful moments for these celebrated jurists and their colleagues.

Nobody is immune to age, not even Oliver Wendell Holmes Jr., one of the towering minds in legal history.

In 1932, Holmes was 90 years old and still serving on the court — falling asleep on the bench and increasingly unable to write. Some of the justices decided Holmes needed to retire, according to the University of Chicago Law Review article.

Chief Justice Charles Evans Hughes consulted with Holmes’ good friend, Justice Louis Brandeis, then paid Holmes a visit.

“Justice Holmes,” Hughes wrote in his memoirs, “received my suggestion, which was made as tactfully as possible, without the slightest indication of his resentment or opposition.”

Holmes asked Hughes to retrieve from a nearby bookshelf the relevant legal statues. Then he wrote his resignation and handed it to Hughes, who left crying.

“The condition of my health makes it a duty to break off connections that I cannot leave without deep regret,” Holmes wrote. “The time has come … and I bow to the inevitable.”

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