Disability of justices

Physical or mental impairment that prevents a justice from participating fully in the activities of the Supreme Court.

One of the earliest cases of disability involved Justice Gabriel Duvall,Duvall, Gabriel who became a justice in 1811. By 1834, he had become so deaf that it was virtually impossible for him to converse with others. Duvall could not follow oral arguments and was often absent from the Supreme Court. In 1835 he agreed to resign after being informed that President Andrew Jackson would appoint Roger Brooke Taney, a fellow Marylander, as his successor.Resignation and retirement

A Pension Plan

Before 1869, there was no provision for justices to receive a pension. In that year, a pension planPension plan wasSalaries;pensions[pensions] established, allowing justices who had served for ten years and reached the age of seventy to retire with salary. The existence of such a plan served as an incentive for retirement; however, a justice who failed to meet these requirements and became disabled would not be eligible for benefits. For the impecunious justice, this posed a significant problem. In the late 1860’s, Justice Robert C. Grier,Grier, Robert C. whose service on the Court dated from 1846, became increasingly infirm, and his behavior on the bench increasingly erratic. When the constitutionality of the Legal Tender Act of 1862 came before the Court in Hepburn v. Griswold[case]Hepburn v. Griswold[Hepburn v. Griswold] (1870), Justice Grier initially voted in favor of the act but shortly afterward changed his vote to strike down the act. His colleagues were concerned about his continued participation on the Court, and they dispatched Justice Stephen J. Field, the Court’s most junior justice, to encourage Grier to resign. In 1870, after the pension legislation became effective, Grier agreed to step down.

Almost thirty years later, a similar situation existed involving, ironically, Justice Field,Field, Stephen J. the Court’s emissary in the Grier case. On this occasion Justice John Marshall Harlan was sent to encourage Field, who had served on the Court since 1863, to retire because of his physical condition. Trying to think of a tactful way to raise the issue, Harlan reminded Field of the Grier resignation, hoping that the message might thus be raised obliquely. Field’s response was “Yes, and a dirtier day’s work I never did in my life.” Nonetheless, the message had been conveyed, and Field tendered his resignation in April, 1897, to become effective on December 1, 1897, thereby ensuring that he would eclipse the record tenure on the Court of the late Chief Justice John Marshall.

Congress acted to extend pension benefits by special legislation to Justice Ward HuntHunt, Ward (1872-1882). Hunt suffered a stroke in 1878 that left him incapacitated. Because he had not served long enough to qualify for a pension, he maintained that he could not afford to resign. For a time the Court simply functioned without him. Finally, in 1882 the impasse was broken when Congress enacted a special retirement act for Hunt conditioned on the requirement that he immediately resign from the Court. The bill was shepherded through the Congress by Senator David Davis, a former justice. However, when the brother of Justice Howell E. JacksonJackson, Howell E. (1893-1895) suggested to Chief Justice Melville W. Fuller in January, 1895, that the justice, who was seriously ill, be accorded the same treatment as that given to Hunt, the justices took no action, and Justice Jackson died a few months later.

The Twentieth Century

William H. MoodyMoody, William H. (1906-1910) contracted acute rheumatism before he had served a sufficient period of time to qualify for a pension. At the behest of friends, Congress passed a special law making him eligible for benefits. Justice Joseph McKennaMcKenna, Joseph[MacKenna, Joseph] (1898-1925) became mentally impaired near the end of his career on the Court. Chief Justice William H. Taft and his colleagues were concerned about McKenna’s ability to function. He often missed the point of a case and had to have several of his opinions rewritten. The chief justice secured an agreement from the other members of the Court that decisions would not be rendered in cases in which McKenna’s vote decided the case. With gentle nudging from Taft, McKenna agreed to retire in 1925. Chief Justice Charles Evans Hughes informed Justice Oliver Wendell HolmesHolmes, Oliver Wendell (1902-1932) that the time had come for him to step down. In 1971 Justices Hugo L. Black (1937-1971) and John M. Harlan II (1955-1971) retired from the Court because of declining health. Both died a short time after leaving the Court.

On December 31, 1975, Justice William O. DouglasDouglas, William O. (1939-1975) suffered a major stroke and, as a consequence, was left partially paralyzed and in considerable pain. After an absence of some months, he attempted to resume his duties. However, it soon became clear to his colleagues and to his friends that he would no longer be able to shoulder his Court responsibilities. Nevertheless, he was reluctant to end his career. Only with the urging of his wife and friends did he accede to their suggestion that he retire. Ironically, the choice of his successor was made by President Gerald R. Ford, who some years earlier, as a member of the House of Representatives, had advocated Douglas’s impeachment.

The justices who have incurred serious disabilities have been few in number. The availability of a generous retirement program obviously has made it easier for justices to take leave of the Court when confronted by a major physical or mental ailment. The timely intervention of colleagues on the Court has usually been the most important factor in influencing the disabled justice to leave the Court.

Further Reading

  • Abraham, Henry. Justices and Presidents: A Political History of Appointments to the Supreme Court. New York: Oxford University Press, 1985.
  • Freidman, Leon, and Israel, Fred, eds. The Justices of the United States Supreme Court: Their Lives and Opinions. 5 vols. New York: Chelsea House, 1997.
  • Hughes, Charles Evans. The Supreme Court of the United States. Garden City, N.Y.: Garden City Publishing, 1928.
  • Warren, Charles. The Supreme Court in United States History. 2 vols. Boston: Little, Brown, 1922.
  • Witt, Elder, ed. Guide to the United States Supreme Court. 2d ed. Washington, D.C.: Congressional Quarterly, 1997.

Circuit riding

Douglas, William O.

Duvall, Gabriel

Field, Stephen J.

Grier, Robert C.

Hunt, Ward

McKenna, Joseph

Moody, William H.

Nominations to the Court

Resignation and retirement