McReynolds’s work product on the Court was undistinguished. He wrote short opinions composed mostly of quotations from lower-court opinions, citing little or no authority in support of the Court’s decision and providing no discussion of the authority cited. Nevertheless, McReynolds gained national recognition as a strong friend of business with a deep antipathy to economic regulation. With the election of President Franklin Roosevelt in 1932, McReynolds became the leader of the famed “Four Horsemen of the Apocalypse”—the four Justices who repeatedly voted to strike down New Deal legislation on various constitutional grounds. McReynolds thought the New Deal heralded the destruction of the “American system,” and he saw the Court as the last bastion protecting the country against socialism. Moreover, he personally disliked Franklin Roosevelt, whom he described as “that crippled jackass” in the White House. Roosevelt returned the sentiment, and at his famous weekly poker games the wild card was referred to as Justice McReynolds.
The story of how President Roosevelt, in 1937, sought to overcome the Supreme Court’s opposition to New Deal legislation by “packing” the Court has been mentioned. What is less well known is that the court-packing plan was in fact derived from a similar plan proposed by McReynolds himself in 1914, when he was Attorney General. McReynolds had excluded the Supreme Court from his plan, but suggested that a new judge should be appointed for each lower federal court judge who turned seventy while on the bench, in order to ensure efficiency in the lower courts. President Roosevelt took ironic pleasure in adapting McReynolds’s idea to the task of defeating McReynolds and his fellow conservatives on the Court.
The President’s plan to pack the Court with sympathetic justices did not succeed. It is often said that the court-packing plan helped precipitate the famed “switch in time that saved nine.” The phrase—a play on the saying “a stitch in time saves nine”—refers to a perceived shift in position by Justice Owen Roberts. Many perceived that Justice Roberts, after voting to invalidate New Deal legislation in several cases, suddenly reversed course in a 1937 case, West Coast Hotel Co. v. Parrish, in order to protect the Court from the President’s court-packing plan.14 Later accounts, however, have indicated that Justice Roberts cast his vote before President Roosevelt even announced his plan.15 In any event, 1937 marked the demise of the Four Horsemen and the beginning of the end for Justice McReynolds. McReynolds retired in 1941, three days before his seventy-ninth birthday. He had dissented more often than any other Justice in the history of the Supreme Court. When he died in 1946, not a single one of his fellow Justices attended his funeral.
IF ONE TRIED TO imagine the antithesis of Justice McReynolds, Justice William O. Douglas might come close to the mark. Whereas McReynolds was passionately conservative and lived by a rigid moral code, Douglas was one of the most liberal Justices ever to sit on the Supreme Court, and his libertine conduct helped earn him the moniker “Wild Bill.”
Douglas was born in Minnesota in 1898. His father died when he was five years old, and his mother raised him and his siblings on her own in the town of North Yakima, Washington. Douglas’s mother called him her “treasure” and told him that he would someday be President of the United States. It was an ambition he tried to fulfill for much of his life. After attending college in Washington state, Douglas was admitted to Columbia Law School. He financed his trip to New York by shepherding a couple of thousand sheep on freight trains headed east from Washington.
He married his hometown sweetheart while in law school, and she worked as a teacher to help put him through school. Douglas visited his wife on weekends but kept her existence a secret from his classmates. He excelled in law school, and soon after graduating, he rose to become one of the leading law professors in the country. His scholarship on business law reform gained the attention of officials in President Franklin Roosevelt’s administration, and by 1937, Douglas was appointed chairman of the Securities and Exchange Commission. He gained national attention as an aggressive reformer who brought about a dramatic reorganization of the New York Stock Exchange. President Roosevelt nominated Douglas to the Supreme Court in 1939. At the age of forty, he was one of the youngest Justices in Supreme Court history.
Douglas’s ambitions went beyond the Court, however. He had his eye on the White House, and nearly got there. He was President Roosevelt’s first choice for a running mate in 1944, but backroom politicking deprived him of the nomination. Truman invited him to be his running mate in 1948, but Douglas declined, thinking Truman would lose. At the end of the day his efforts came to naught, and he remained a Justice for thirty-five years.
On the Court, Douglas became one of most liberal Justices in American history, most often arguing his cause in dissent. Douglas was a First Amendment absolutist, fighting for virtually unhindered freedom of speech even as the Communist scare rocked the country. In 1965 he wrote the opinion for the Court in Griswold v. Connecticut, which held that the Constitution forbade government from prohibiting the sale of contraceptives, and thus laid the foundation for Roe v. Wade. He was a strong opponent of the Vietnam War, which he believed was unconstitutional. In his capacity as circuit justice for the Ninth Circuit, he sought unsuccessfully to stop draftees from being sent to Vietnam and to block the bombing of Cambodia in 1972.
Despite his meteoric rise in Washington politics, and the high office in which he came to rest, Douglas retained his Western roots. He wore a Stetson, spoke with a Western accent, struck his matches on his shoe or his pants seat, and maintained an ostentatious irreverence for the social traditions of the capital. He was a legendary storyteller, and according to President Roosevelt at least, a pretty good poker player. Most notably, he loved the outdoors, especially the mountains, and was widely traveled. Every summer he returned to Washington state, where he stayed in his log cabin and hiked and camped in the Cascade Mountains.
There is a story about how, during the summer of 1970, some lawyers sought to bring an emergency application in a case to Justice Douglas while he was camping in the Cascades. The lawyers, wearing their business suits and bearing briefcases, hiked out to find Douglas on a remote trail. They represented protesters who had been arrested in the course of a peaceful demonstration against the Vietnam War. Given Douglas’s record, the attorneys were sure that he would grant their clients emergency relief. But what they didn’t realize was that one of the few things Douglas hated more than Richard Nixon and the Vietnam War was being interrupted during a camping trip. It was close to twilight when the lawyers found Douglas, but he told them to come back in the morning when he would issue his ruling. They reluctantly tramped back toward the trailhead. When they returned the next morning, they found a handwritten note on a scrap of paper under a rock. It read, “Denied—William O. Douglas.”
Douglas’s love of the outdoors made him an avid conservationist, and he worked to preserve wild and open space around the country. When The Washington Post wrote favorably of plans to construct a road along the towpath of the Chesapeake & Ohio Canal near Washington, D.C., Douglas challenged the paper’s editors to hike the 185-mile towpath with him. Several accepted and the publicity sparked by the hike helped lead to the preservation of the old towpath as a national historical park. Douglas spearheaded many similar events intended to gain support for the protection of natural places around the country.
Associate Justice William O. Douglas on the Potomac River. (Photograph Credit 10.3)
Despite his achievements in some spheres, Douglas’s personal life was more troubled. In 1951, he became the first Supreme Court Justice ever to be divorced when he left his wife of twenty-eight years for another woman. In 1963, at the age of sixty-five, he divorced his second wife and married a twenty-three-year-old. Three years later, he divorced his third wife and married a twenty-two-year-old. Each successive divorce imposed further financial burdens on Douglas, and by his late sixties, he was nearly destitute. Meanwhile, in the face of opposition from President Nixon and conservatives in Congress, Douglas became increasingly paranoid dur
ing his latter years that he was being subjected to government surveillance.
The disorder in Douglas’s personal life perhaps carried over into his work on the Court. Justice Brennan once said that Douglas’s last decade on the Court was characterized by “slovenliness” and errors. Douglas at last stepped down from the Court in 1974 after suffering a severe stroke. He had served thirty-five years on the bench. In the course of his tenure, he had faced formal impeachment charges in the House on at least two occasions for his actions on and off the bench. He had written more than one thousand full opinions, including nearly five hundred dissents. Nearly half of the latter were solo dissents, earning him the nickname “the Lone Ranger.” He wrote thirty-two books, including a bestselling autobiography and numerous accounts of his travels around the world. Douglas died in 1980. He was buried in Arlington National Cemetery with a tombstone inscribed, as Douglas had requested, WILLIAM O. DOUGLAS, PRIVATE, UNITED STATES ARMY.
BRITISH ACTOR DONALD SINDEN once said, “Actors ought to be larger than life. You come across quite enough ordinary, nondescript people in daily life and I don’t see why you should be subjected to them on the stage too.” If the Supreme Court bench can be likened to a stage, these four men were larger-than-life actors who certainly made “the play” interesting. Each was molded by the place from which he came: Field by the California frontier, Holmes by patrician Boston, McReynolds by the Old South, and Douglas by the mountains of Washington state. Each was shaped by and shaped the times in which he lived: Field by the opening of the far West; Holmes by the Civil War, the industrial revolution, and the First World War; McReynolds by the passing of the old economic order and the advent of the New Deal; and Douglas by the transition from the New Deal to the Red scares and later to the Vietnam War. They held radically different ideas about the proper relationship between government and business, between security and free speech, and each held his ideas passionately. Each made his mark on the Court’s jurisprudence, not usually by writing for the majority, but in dissent. None hesitated to go it alone when his principles so required. Not all of these men were likable, and indeed the beliefs and conduct of a couple of them were at times unworthy of the great office they held.
Their stories may tell us something of what sort of character we should look for in a Justice of the Supreme Court. But whatever lessons we may draw from them, these larger-than-life personalities will always be remembered.
GONE BUT NOT FORGOTTEN
Judicial Retirement
MUCH ATTENTION HAS BEEN FOCUSED ON HOW JUSTICES join the Court and what they have done in their careers in advance of their nominations. Justices’ departures from the Court have received less attention. Justices are, to a fault, dedicated to their judicial role, the Court itself, and their service to the country. The decision to leave the Court is never an easy one, and a Justice’s reasons are deeply personal. This chapter discusses the laws governing departures, reasons Justices have left the Court, and Justices’ post-Court activities.
THE LAWS GOVERNING JUSTICES’ pensions have changed greatly over the years. The first statute on judicial pensions was passed in 1869. It provided that Justices who reached the age of seventy and had at least ten years of service could resign their seat; they were entitled to receive for life the same salary to which they were entitled at the time of their resignation.1 Resignation terminated the Justice’s judicial office. He (and they were all male until 1981!) could no longer participate in the work of the Supreme Court or any other federal court.
That changed in 1937. At that time, the Supreme Court had struck down a number of the Roosevelt administration’s New Deal statutes. In order to ensure that the rest of the New Deal would be upheld, President Franklin D. Roosevelt proposed the plan under which one Justice would be added to the Supreme Court for one over the age of seventy. Some in Congress supported a mandatory retirement age for Justices, but President Roosevelt would not compromise.2
Congress instead passed the Retirement (Sumners-McCarran) Act of March 1, 1937. The act gave Supreme Court Justices the option to take “senior status,” an option that federal circuit and district court judges had had since 1919.3 The 1937 law provided that Justices who reached the age of seventy and had at least ten years of service as a federal judge could retire to senior status, rather than resign as a federal judge.4 Under this provision, retired Justices remained federal judges. They could not participate in the work of the Supreme Court but could still perform judicial duties in any other federal court, whether district or circuit. The act also allowed Justices to continue to receive their salary.5 The first Justice to avail himself of the senior status option was Justice Willis Van Devanter, a conservative who had opposed the Roosevelt administration’s New Deal programs and had become known as one of the Four Horsemen.6
In the 1980s, the law changed again. Justices now may take senior status by satisfying the “Rule of Eighty.”7 This rule refers to the fact that Justices who reach the age of sixty-five may retire if the sum of their age and years of judicial service is at least eighty. They continue to draw for life a salary equal to that in place when they retired.8 In addition, Justices who retire to senior status may continue to receive the “salary of the office”—which means they are entitled to any pay raise afforded to active Justices—by performing judicial duties or other government service equal to three months of work by an active Justice.9
Although judges on lower courts who take senior status are entitled to continue to sit on cases in their home court or elsewhere if so designated, Supreme Court Justices are permitted to sit anywhere but the Court to which they were confirmed. This principle was firmly established within the Court due to events arising out of the retirement of Justice William O. Douglas. Justice Douglas’s health had been failing for some time and severely deteriorated after he suffered a stroke at the end of 1974.10 During the first sittings of the 1975 Term, Douglas was too ill to remain on the bench for oral argument, and his colleagues took the extraordinary step of refusing to assign him any opinions to write.11
On November 12, 1975, Justice Douglas submitted his retirement.12 After Justice John Paul Stevens took his place, however, Justice Douglas expressed his view that he should remain able to participate in all cases on which certiorari had been granted prior to his retirement.13 Justice Douglas went so far as to announce that he planned to write an opinion in Buckley v. Valeo, an important campaign finance case.14 He then wrote an opinion and attempted to have it circulated to the active Justices.15 At that point, the active Justices intervened. Chief Justice Burger wrote a memo, signed by all of the Justices, explaining that as a retired Justice, Justice Douglas was no longer entitled to participate in oral argument or the Court’s Conference or to vote and issue opinions in cases.16
THERE ARE THREE BROAD categories of reasons for which most Justices have left the Court. The first is death in office. Fifty Supreme Court Justices have died during their service as active Justices.17 The retirement provisions described above have helped to decrease the incidence of Justices remaining in office while infirm because Justices do not need to do so to retain their salary. Since the 1937 Retirement Act, only eight Justices have died in office, and Chief Justice William H. Rehnquist is the only Justice who has died in office since 1954.18 The vast majority of Justices since that time have taken senior status.19
The second type of reason frequently cited by Justices who have resigned or retired is advanced age or ill health.20 Because Justices hold their offices during “good behavior,” which typically amounts to a life appointment, Justices are often quite advanced in years at the time they retire. Of course, the physical burdens of the office now are substantially less than they were in the early years of the Court when the Justices rode circuit. Justice John Blair Jr., who resigned in 1796, and Justice Benjamin R. Curtis, who resigned in 1857, cited the circuit-riding responsibilities as among their reasons for resigning.21
On at least two occasions, members of the Court have urged their colleagues
to step down when deteriorating health was interfering with their ability to serve effectively. As described above, Justice Douglas’s colleagues pressed him to retire after his 1974 stroke left him unable to walk, in constant pain, and increasingly mentally disoriented. As Douglas began casting votes that contradicted his prior positions and suffering bouts of pain that forced him to leave oral arguments, the other Justices effectively stripped him of his judicial functions in a remarkable effort to encourage him to step down.22 A majority of the Court had similarly banded together and agreed to suggest retirement to Justice Oliver Wendell Holmes Jr. in 1932. Justice Holmes was noticeably fatigued and, at nearly ninety-one years old, was the oldest justice to serve in history—a record that has yet to be surpassed to this day.23 Chief Justice Charles Evan Hughes visited the Holmes residence one Sunday to carry out what he later called the “highly distasteful duty” of urging Justice Holmes to “not strain himself by continuing to carry the load when his strength was no longer equal to it.”24 Justice Holmes tendered his resignation to President Hoover the following day, writing that “[t]he condition of my health makes it a duty to break off connections that I cannot leave without deep regret.”25
The third major reason Justices have given for resigning from the Court is to assume some other government office. This was the case for two early Justices who resigned to serve in state governments. Justice John Rutledge resigned in 1791 to become the Chief Justice of South Carolina.26 John Jay, the first Chief Justice, resigned from the Court in 1795 to become governor of New York.27
Justice John Archibald Campbell resigned to join the Confederacy in 1861, shortly after the outbreak of the Civil War.28 He served in the Confederacy as assistant secretary for war and was imprisoned by the Union army for several months after the war.29 After his release, he returned to the practice of law and argued several cases before the Supreme Court, including the Slaughter-House Cases.30
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