Disability of Justices

Disability of Justices Holding office during “good behavior” (Art. III, sec. 1), physically and/or mentally disabled justices are not deemed to be removable by impeachment. Nor are they subject to a constitutional provision as is the president (Twenty‐fifth Amendment) or to a statutory process as are disabled lower federal court judges (28 U.S. 372 (b) [2003]). Absenteeism among the early and antebellum Supreme Court justices related to such disabilities, aggravated if not caused by their grueling circuit riding duties. Light workloads, the dominance of Chief Justice John Marshall, the multimember composition of the Court, and substantial majorities by which cases were decided ameliorated the institutional impact of disabled members, even of Henry Baldwin who remained a mental wreck during his fourteen years on the bench. More deleterious was the effect of disabled justices on the work of the circuit courts prior to the creation in 1869 of separate circuit judgeships. (See Judiciary Act of 1869).

Absenteeism because of disability prevented a statutorily mandated Supreme Court quorum in 1811 and caused adjournment of the term. The absence in 1834 of cancer‐ridden William Johnson and deaf octogenarian Gabriel Duvall combined with a promised 3‐to‐2 split on three pending landmark constitutional cases prompted an outvoted Marshall to continue them. Postponing cases is one strategy followed by other chief justices in dealing with disabled colleagues as Taney did with enfeebled John McKinley and as Warren Burger did with stroke victim William O. Douglas in cases on which the Court was evenly divided. But if a justice sat for oral arguments on a case and subsequently became incapacitated, absentee conference votes cast through peer proxies were permitted. When Chief Justice Rehnquist remained physically absent from the bench for months during the october 2004 term because of thyroid cancer and its treatment, he virtually participated from his home in the work of the Court by reading briefs and transcripts of oral arguments and voting on cases.

Assignment by the chief justice of simple cases was a strategy pursued by William Howard Taft with mentally confused Joseph McKenna, or of no cases at all as he did with a broken‐down Mahlon Pitney and as Burger did with Douglas. The Burger Court also agreed to ignore any conference votes cast by the physically and mentally incapacitated Douglas on cases in which the brethren were evenly divided. Dissenter Bryon White protested that the policy was in violation of “Article III's ‘good behavior’” provision because it unconstitutionally stripped the paranoid justice of his judicial power and office and effectively reduced the Court's size to eight without statutory authorization.

Dysfunctional behavior of a disabled justice may directly impair the Court's work. McKenna's temper tantrums, Henry Baldwin's violent rages, Nathan Clifford's irascibility, and senile Stephen J. Field's exaggerated irritability roiled the Court. Disabled justices may miscast conference votes as did a declining Thurgood Marshall, write opinions that contradict their conference votes as did Clifford and McKenna, seemingly vote inconsistently with their prior judicial record as did nearly blind Henry B. Brown in Lochner v. New York (1905), or become the target of factional proselytizers among the brethren or did a befogged Robert Grier in Hepburn v. Griswold (1870) invalidating the Legal Tender Act (see Legal Tender Cases) and as did the mentally unstable Charles Whittaker, a quarry relentlessly hunted by vote‐seeking Felix Frankfurter.

Disabled justices have clung to their seats for financial considerations (William Cushing), for the social status derived by family members from their official position (Grier, Salmon Chase), and because of political antipathy toward the president who would name their successor (Duvall, Clifford, Ward Hunt, Taft, Douglas).

The pitiful condition of four members of the Civil War Court and a growing caseload captured congressional attention. The still fresh memory of aged Chief Justice Roger Taney's physical infirmity induced Congress to act in 1868, four years after his death. It then authorized devolution of a disabled chief justice's powers and duties to the senior associate justice. The next year saw enactment of the first Supreme Court pension bill to encourage timely and voluntary departure. Aimed especially at Grier, the 1869 act permitted resignation at the salary then received for justices who had attained age seventy and had served at least ten years. Further enhancement of this option occurred in 1937 when Congress extended to the justices the privilege of retirement rather than resignation. The former status allowed retention of the judicial office, the salary of which was protected by the Constitution's compensation clause as stipulated in Booth v. United States (1934). Postretirement salary increases became applicable in 1944 to the pay of retired justices, albeit restricted in 1989. In 1954 Congress lowered the minimum retirement age to sixty‐five after fifteen years of service and in 1984 established a flexible age‐service eligibility schedule (“Rule of 80”).

With leverage afforded by the 1869 act, collective action by the Court, usually and often belatedly mobilized by the chief justice, persuaded Grier, Field, McKenna, and a faltering Oliver W. Holmes to avail themselves of the congressional beneficence. But excluded from the act's scope were disabled justices who had not attained the requisite age and duration of service. For egregious cases, Congress enacted specific bill for otherwise ineligible disabled justices: Hunt (1882), William Moody (1910), Pitney (1922). Not until 1939 did Congress enact general legislation making available to disabled justices, regardless of age, retirement at half pay for service of less than ten years and at full salary for service of more than ten years. Under its terms, sixty‐one‐year‐old Whittaker became in 1962 the first justice to retire under the act, having certified himself as permanently disabled after five years on the bench.

Physical infirmity and eligibility for retirement benefits markedly increases the probability of departure. Peer pressure and media publicity about health and performance may hasten the event. But no additional justice, senior in commission, may be appointed to pressure a disabled justice as with similarly afflicted lower court judges. Other ameliorative strategies raise issues of justice and fairness to litigants and of constitutionality in the absence of a constitutional amendment explicitly addressing the disability of Supreme Court justices.

Bibliography

David H. Atkinson , Leaving the Bench: Supreme Court Justices at the End (1999).
Atremus Ward , Deciding to Leave: The Politics of Retirement from the United States Supreme Court (2003).

Peter G. Fish