Deciding to Leave

Artemus Ward

Description

While much has been written on Supreme Court appointments, Deciding to Leave provides the first systematic look at the process by which justices decide to retire from the bench, and why this has become increasingly partisan in recent years. Since 1954, generous retirement provisions and decreasing workloads have allowed justices to depart strategically when a president of their own party occupies the White House. Otherwise, the justices remain in their seats, often past their ability to effectively participate in the work of the Court. While there are benefits and drawbacks to various reform proposals, Ward argues that mandatory retirement goes farthest in combating partisanship and protecting the institution of the Court.

List of Illustrations and Tables

Preface

1. The Politics of Departure in the U.S. Supreme Court

Departure in Comparative Perspective
Departure Politics in Historical Context
Overview

2. 1789–1800: Traveling Postboys

Indisposition and the Early Supreme Court
Disagreeable Tours
Conclusion

3. 1801–1868: Crippled Courts

Army of Judges
Imminent Danger of Sudden Death
Needy and Half-Paid Men
Abridgement of Tenure, Facility of Removal, or Some Other Modification
If Mr. Clay Had Been Elected
Overview

4. 1869–1896: Old Imbeciles on the Bench

Dangerous in its Operation
1869 Retirement Act
The Disputed Election of 1876
The Evarts Act
Conclusion

5. 1897–1936: Old Fools and Young Spirits

The Field Effect
Evarts Act Redux
Increased Caseloads
Conclusion

6. 1937–1954: Senior Status

A War with a Fool at the Top
1937 Retirement Act
Untimely Deaths
Conclusion

7. 1954–1970: The Limits of Power

1954 Retirement Act
Cantankerous Fellows
An Extraconstitutional Arrangement
Conclusion

8. 1971–1999: Appointed for Life

He Ought to Get Off the Court Too
Old and Coming Apart
Conclusion

9. 2000–Present: A Self-Inflicted Wound

The Disputed Election of 2000
That’s For Me to Know and You to Find Out
Conclusion

10. Conclusion: Imaginary Danger?

Ability and Inability
The Rule of 100
Lightening the Burden
Mandatory Retirement
Conclusion

Appendix A

Letter from Byron White to Warren Burger, Oct. 20, 1975

Appendix B

Letter from Warren E. Burger, William J. Brennan, Jr., Potter Stewart, Byron R. White, Thurgood Marshall, Harry A. Blackmun, Lewis F. Powell, and William H. Rehnquist to William O. Douglas, December 22, 1975

Appendix C

Letter from John Paul Stevens to William H. Rehnquist, October 28, 1988

Notes

Bibliography

Index

Sujets

• USA
• United States of America
• Central government
• History of the Americas
• Central
• États-Unis
• National

Informations

• Publié par: State University of New York Press
• Date de parution: 01 février 2012
• Nombre de lectures: 0
• EAN13: 9780791487228
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Deciding to Leave

SUNY series in American Constitutionalism

Robert J. Spitzer, editor

Deciding to Leave

The Politics of Retirement from the United States Supreme Court

Artemus Ward

State University of New York Press

Cover Photo: The Justices’ Conference Room (1993). Franz Jantzen, Collection of the Supreme Court of the United States.

Published by State University of New York Press, Albany

© 2003 State University of New York

All rights reserved

Printed in the United States of America

No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher.

For information, address State University of New York Press, 90 State Street, Suite 700, Albany, NY 12207

Production by Michael Haggett Marketing by Jennifer Giovani

Library of Congress CataloginginPublication Data

Ward, Artemus, 1971– Deciding to leave : the politics of retirement from the United States Supreme Court / Artemus Ward. p. cm. — (SUNY series in American constitutionalism) Includes bibliographical references and index. ISBN 0-7914-5651-X (hbk. : alk. paper) — ISBN 0-7914-5652-8 (pbk. : alk. paper) 1. United States. Supreme Court—Officials and employees—Retirement. 2. Judges—Retirement—United States. I. Title. II. Series.

KF8742 .W368 2003 347.73'2634—dc21

10 9 8 7 6 5 4 3 2 1

2002030977

List of Illustrations and Tables

Preface

Contents

1 The Politics of Departure in the U.S. Supreme Court Departure in Comparative Perspective Departure Politics in Historical Context Overview

2 1789–1800: Traveling Postboys Indisposition and the Early Supreme Court Disagreeable Tours Conclusion

3 1801–1868: Crippled Courts Army of Judges Imminent Danger of Sudden Death Needy and HalfPaid Men Abridgment of Tenure, Facility of Removal, or Some Other Modification If Mr. Clay Had Been Elected Conclusion

4 1869–1896: Old Imbeciles on the Bench Dangerous in its Operation 1869 Retirement Act The Disputed Election of 1876 The Evarts Act Conclusion

v

ix

xi

1 12 15 21

25 27 28 40

43 44 48 51

5 5 6

5 9 7

69 72 75 81 89 94

vi

5

6

7

8

9

10

C ONTENTS

1897–1936: Old Fools and Young Spirits The Field Effect Evarts Act Redux Increased Caseloads Conclusion

1937–1954: Senior Status A War with a Fool at the Top 1937 Retirement Act Untimely Deaths Conclusion

1954–1970: The Limits of Power 1954 Retirement Act Cantankerous Fellows An Extraconstitutional Arrangement Conclusion

1971–1999: Appointed for Life He Ought to Get Off the Court Too Old and Coming Apart Conclusion

2000–Present: A Self-Inflicted Wound The Disputed Election of 2000 That’s For Me to Know and You to Find Out Conclusion

Conclusion: Imaginary Danger? Ability and Inability The Rule of 100 Lightening the Burden Mandatory Retirement Conclusion

Appendix A Letter from Byron White to Warren Burger, October 20, 1975

Appendix B Letter from Warren E. Burger, William J. Brennan, Jr., Potter Stewart, Byron R. White, Thurgood Marshall, Harry A. Blackmun, Lewis F. Powell, and William H. Rehnquist to William O. Douglas, December 22, 1975

95 96 101 113 124

127 129 136 143 150

153 158 161 168 175

177 178 192 209

211 213 217 222

225 229 233 237 240 247

249

253

Contents

Appendix C Letter from John Paul Stevens to William H. Rehnquist, October 28, 1988

Notes

Bibliography

Index

vii

255

259

313

329

This page intentionally left blank.

List of Illustrations and Tables

FIGURES

1.1 Retirement Benefits and Voluntary Departure in the U.S. Supreme Court 3.1 U.S. Supreme Court Caseload: 1800–1870 4.1 U.S. Supreme Court Caseload: 1870–1940 6.1 U.S. Supreme Court Caseload: 1937–1954 7.1 U.S. Supreme Court Caseload: 1940–2000 9.1 Life Expectancy: U.S. White Males versus U.S. Supreme Court Justices: 1940–2000 10.1 The Effect of Increased Retirement Benefit on Voluntary Retirement in the U.S. Supreme Court 10.2 The Effect of Increased Workload on Voluntary Retirement in the U.S. Supreme Court 10.3 The Effect of Increased Retirement Benefit on Partisan Departures in the U.S. Supreme Court 10.4 The Effect of Increased Workload on Partisan Departures in the U.S. Supreme Court 10.5 The Effect of Departure Mechanisms on Tenure in the U.S. Supreme Court

TAB

LES

1.1 Departures from the U.S. Supreme Court: 1789–Present 1.2 The Effect of Partisan Politics in the Executive and Legislative Branch on Departure in the U.S. Supreme Court

ix

8 44 71 130 157

212

226

226

227

227

240

1

3

0