Resignation and retirement Summary

Supreme Court justices may either resign or retire from their positions. Normally, justices who retire from the Court do not engage in further judicial or political activities, although those who resign often do. Resignation or retirement takes on added significance in the case of Supreme Court justices because the U.S. Constitution provides that judges of the supreme and inferior courts are to serve during good behavior. Therefore, unlike members of Congress and the president, federal judges do not have a fixed tenure. The only constitutionally acceptable method by which judges may be removed is through impeachmentImpeachment of judges for and conviction of treason, bribery, or other high crimes and misdemeanors. Most vacancies on the Court resulted from the death of the incumbent. Indeed, approximately half of the justices who served on the Court died in office.

Relatively few justices have resigned from the Court. Some justices elected to leave the Court because they were dissatisfied with some aspect of their work on the Court. For example, Thomas JohnsonJohnson, Thomas (1791-1793) and Alfred MooreMoore, Alfred (1800-1804) were unhappy with the requirement that members of the Court perform duties as circuit judges simultaneously with their Court duties.

Other justices have resigned to accept or to seek another office. John RutledgeRutledge, John (1790-1791), one of George Washington’s initial appointees to the Court, resigned without ever having sat on a case to become chief justice of the Court of Common Pleas in South Carolina. Chief Justice John JayJay, John (1789-1795) left the Court upon being elected governor of New York. Similarly, David DavisDavis, David (1862-1877) terminated his judicial career to accept election to the U.S. Senate from Illinois, and Charles Evans HughesHughes, Charles Evans (1910-1916) resigned his associate justice position upon receiving the Republican nomination for the presidency. Hughes was defeated by Woodrow Wilson. Later Hughes was appointed chief justice (1930-1941) by President Herbert Hoover, becoming the only person to serve at two different times on the Court.

James F. ByrnesByrnes, James F. (1941-1942) and Arthur J. GoldbergGoldberg, Arthur J. (1962-1965) left the Court to accept positions in the Franklin D. Roosevelt and Lyndon B. Johnson administrations respectively. Byrnes appears to have found the work on the Court less interesting than he had anticipated and desired to return to the more challenging political life he had abandoned when he accepted Roosevelt’s appointment some months earlier. President Johnson prevailed on Goldberg to accept an appointment as U.S. ambassador to the United Nations, a position that had become vacant after the death of Adlai Stevenson.

Ill health led to the decisions of John Blair, Jr., (1790-1795), Oliver Ellsworth (1796-1800), Gabriel Duvall (1811-1835), and Charles E. Whittaker (1957-1962) to leave the Court. Justices;disability of Benjamin CurtisCurtis, Benjamin (1851-1857) apparently resigned over dissatisfaction with the Scott v. Sandford[case]Scott v. Sandford[Scott v. Sandford] (1857) decision, and John A. CampbellCampbell, John A. (1853-1861) resigned when his native state of Alabama seceded from the union. John H. ClarkeClarke, John H. (1916-1922) abbreviated his career after only six years on the Court to devote his time to securing the entry of the United States into the League of Nations. Finally, Justice Abe Fortas (1965-1969) resigned because of alleged ethical improprieties while serving on the Court.

Salaries;pensions[pensions]Before 1869, there was no statutory provision for pension benefits for Court justices. In that year Congress enacted legislation permitting justices to retire at age seventy with ten years of service on the judiciary. Between 1869 and 1921, seven retirements occurred; fourteen between 1921 and 1969; nine after 1969. In 1937 President Franklin D. Roosevelt proposed that for every justice over the age of seventy who did not retire within six months, an additional justice would be appointed to a maximum of fifteen. Although the Court-packing plan was not approved, Congress did liberalize pensionSalaries;pensions[pensions] benefits for federal judges. Under the law, judges might retire as early as age sixty-five provided they met certain length of service requirements.

Within four years of the enactment of this legislation, four members of the Court retired. Advanced age or physical infirmities often prompted retirement. No doubt these factors were instrumental in the retirements of Justices Lewis F. Powell, Jr. (1972-1987), William J. Brennan, Jr. (1956-1990), Thurgood Marshall (1967-1991), and Harry A. Blackmun (1970-1999). Justice Tom C. Clark (1949-1967) retired when his son, Ramsey Clark, was nominated as attorney general of the United States. The elder Clark recognized the awkward situation presented by his continuance on the Court under these circumstances.

Finally, there is some evidence that justices may try to time their retirement so as to permit a president of their own party or philosophically compatible with them to name their successor. Nathan CliffordClifford, Nathan (1858-1881) stayed on the Court as long as he could in the hope that a Democratic president would appoint his successor. He died in 1881 with a Republican in the White House. Earl WarrenWarren, Earl;retirement (1953-1969) may have timed his retirement to allow Johnson to choose his successor as chief justice rather than permit Richard M. Nixon, the Republican likely to follow Johnson in office, to make the appointment. If that was Warren’s motivation, it did not succeed; Johnson’s choice of Fortas to succeed him failed to win approval in the Senate, and Nixon later named Warren’s successor, Warren Burger.

The present pattern is for justices to remain on the Court until death or retirement. No member of the Court has died in office since 1954, and no justice has resigned since 1965. With the stature of the Court firmly established, the prestige of membership on the Court widely recognized, and the conditions of service more attractive than in the nineteenth century, resignation to pursue other endeavors is unlikely.

• Abraham, Henry. Justices and Presidents: A Political History of Appointments to the Supreme Court. New York: Oxford University Press, 1985.
• Baum, Lawrence. The Supreme Court. 8th ed. Washington, D.C.: CQ Press, 2004.
• Cramton, Roger C., and Paul D. Carrington, eds. Reforming the Court: Term Limits for Supreme Court Justices. Durham, N.C.: Carolina Academic Press, 2006.
• Friedman, Leon, and Israel, Fred, eds. The Justices of the Supreme Court: Their Lives and Opinions. 5 vols. New York: Chelsea House, 1997.
• Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993.
• Savage, David G., ed. Guide to the United States Supreme Court. 4th ed. Washington, D.C.: Congressional Quarterly, 2004.
• Ward, Artemus. Deciding to Leave: The Politics of Retirement from the United States Supreme Court. Albany: State University of New York Press, 2003.

Byrnes, James F.

Clark, Tom C.

Disability of justices

Fortas, Abe

Goldberg, Arthur J.

Hughes, Charles Evans

Nominations to the Court

Northwest Ordinance

Salaries of justices

Tidelands oil controversy