On February 13, 2016, Justice Antonin Scalia passed away in his sleep, one of forty-nine Justices to die during active service on the Court. Justices are “notoriously reluctant” to leave office, James Flanagan writes in a new article for the Journal of Supreme Court History, and “almost all” of those who resigned did so on account of age or illness. Flanagan reviews the lives of five Justices – – Justice John Rutledge, Chief Justice John Jay, Justice Charles Evans Hughes, Justice James Byrnes, and Justice Arthur Goldberg – who, in contrast, left while healthy and “in the prime” of their careers. Their decisions to leave “the most powerful and prestigious” position in the federal judiciary provide insights into the Court’s history and development as an institution.

Justice John Rutledge departed for South Carolina’s Court of Common Pleas and General Sessions without ever hearing a case for the Supreme Court. His reason: circuit duty. In the Court’s early history, Justices twice a year travelled the country as circuit judges. Rutledge covered the Southern Circuit – the most far-flung and difficult to traverse. Many on the Court shared his disgruntlement over the circuit burden, and his successor, Justice Thomas Johnson, quit after five months. Justice James Iredell died at the age of forty-eight from the toll of riding the Southern Circuit four times in five years, including trips to New York City, which was then the capital of the United States.

Rutledge also retired partly on account of a bruised ego at being passed over by President George Washington for Chief Justice. (Flanagan describes Rutledge as a “proud man” and recounts that Rutledge, as a member of the South Carolina House of Representatives, had the assembly hold a man in contempt for not accepting a letter Rutledge had sent his slave to deliver.) Washington instead chose John Jay for the position, but Jay was simply too involved in other important affairs of state to limit himself fully to the life of a Justice. While Chief Justice, Jay went as a special envoy to Britain, where he negotiated and signed the Treaty of Amity Commerce and Navigation in November 1794. To avoid sailing across the Atlantic in winter, Jay delayed his departure until April 1795; upon landing in New York in May, he discovered he had been elected governor of the state. Jay accepted the position and resigned from the Court.

Shortly thereafter, Rutledge wrote to Washington asking to succeed Jay. Washington complied with a recess appointment (and Rutledge served briefly), but the Senate rejected his formal nomination months later – “[p]erhaps the first instance” in which the Senate rejected a nominee on account of his political views, Flanagan writes. Jay’s treaty, which would help forestall war with Britain until 1812, had quickly become politically divisive. Rutledge actively spoke against it, even saying he “had rather the President should die . . . than he should sign that treaty.” Washington didn’t choose death, and although he honored his earlier promise to nominate Rutledge, he also approved of the Senate’s decision, Flanagan writes.

After Jay’s two terms as governor, President John Adams hoped he might re-appoint him to the Court in 1801. Jay declined, and his explanation captures the status of the Court at that time:

I left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which was essential to its affording due support to the national government; nor acquire the public confidence and respect which as the last resort of the justice of the nation, it should possess. Hence I am induced to doubt both the propriety and the expediency of my returning to the bench under the present system.

That soon changed. After receiving Jay’s notice, Adams chose Secretary of State John Marshall, who happened to be in his office at the time. Marshall, of course, would become the paradigm-shifting fourth Chief Justice and author of the decision in Marbury v. Madison.

One hundred years later, Charles Evans Hughes exemplifies a similar model of politican-judge. In 1910, President William Taft nominated Hughes, the two-time governor of New York, to the Court – in part to remove a likely challenger from the 1912 presidential election. Fortunately for Taft, Hughes happily adopted the life of a Justice. However, as the 1912 election approached, former President Theodore Roosevelt sought to re-claim the Republican nomination from Taft, bitterly dividing the party. Many Republicans hoped that Hughes could unite the party under his leadership, but he refused. When Hughes faced calls for his candidacy again in 1916, he ran, wanting to avoid being known as a man “who placed his own comfort and preference for the life of a judge above his duty to the nation.” Hughes lost the election to the incumbent, President Woodrow Wilson. (In 1930 Hughes replaced Taft, who by then had become the Chief Justice; Hughes would retire in 1941 after navigating the Court-packing scandal of 1937 and with a legacy as Chief Justice “often ranked only behind that of John Marshall,” Flanagan writes.)

Justice James Byrnes provides a bit of inspiration to your correspondent; he began his career as a court reporter – but not for a blog – in Charleston, South Carolina (where, Byrnes’s father having died in his infancy, Rutledge’s great-great-great-nephew, Benjamin Rutledge, mentored and educated him as a child). Growing up to become a senator, Byrnes worked closely with President Franklin Roosevelt, who, it was said at the time, “never lost legislation supported by Byrnes or won it if he was opposed.” Once on the Court (Roosevelt had reluctantly nominated him for various political reasons), Byrnes quickly came to miss the “social comradeship, sense of purpose, and gamesmanship” of politics. The attack on Pearl Harbor a few months after his confirmation made Byrnes eager to more directly serve the American war effort. In October 1942 he left the Court to head the newly created Office of Economic Stabilization, an office to which Roosevelt delegated so much authority over the domestic economy that Byrnes became known as the “Assistant President.” Byrnes suffered an emotional blow when Roosevelt chose Senator Harry Truman as his running mate in the 1944 election, but he continued to counsel both men, including as a primary adviser at the Yalta Conference.

Flanagan’s final Justice – Arthur Goldberg – also left during wartime, which incidentally played a role in the oft-cited unsuccessful nomination of Abe Fortas. In Air Force One on the way to the funeral of Ambassador to the United Nations Adlai Stevenson, President Lyndon Johnson convinced Goldberg to succeed the late ambassador. Despite his “love for the Court and satisfaction with the position,” Goldberg prioritized the opportunity to seek peace in Vietnam. It also seems possible that Johnson hinted at Goldberg becoming the next Chief Justice after Earl Warren, who was expected to retire soon. If that’s true, it didn’t pan out. Goldberg strongly opposed Johnson’s Vietnam policy of military escalation, and their disagreements tarnished the relationship between the two men. After Warren did indeed retire in 1968, Johnson passed over Goldberg and nominated Abe Fortas (who had originally replaced Goldberg on the Court). The Senate did not confirm Fortas, who resigned a year later amid ethics scandals, instead choosing President Richard Nixon’s appointee, Warren Burger.

Flanagan briefly touches on a few other retiring Justices. Justice Benjamin Curtis resigned on account of strained relationships with fellow Justices after the Dred Scott decision, from which Curtis dissented. Justice John Campbell left the Court to become assistant secretary of war for the Confederacy; after the war he argued the Slaughterhouse cases, which limited the Fourteenth Amendment. Justice David Davis left the Court to become a senator from Illinois as part of the deal that made Rutherford Hayes president after the contested 1876 election. Finally, Justice Tom Clark made a familial sacrifice, retiring when his son, Ramsey Clark, became the attorney general in 1967. (Nearly fifty years earlier, Hughes’s son, Charles Evans Hughes, Jr., resigned from his position as the solicitor general when Hughes became Chief Justice in 1930.)

Flanagan closes by noting the contrast between these five Justices, largely all national figures before their time on the Court, with the Justices of more recent eras. Since Goldberg and Fortas, thirteen of sixteen Justices have been former appellate judges, and last week President Barack Obama nominated another, Judge Merrick Garland of the D.C. Circuit. Flanagan suggests that perhaps such choices seem like safer picks than politically experienced judges, who may “prove independent.” However, Flanagan also observes that diverse backgrounds bring “intangible and important benefits” to the Court.

Posted in Supreme Court history

Recommended Citation: Andrew Hamm, Legal history highlight: Justices who left the Court for “better” positions, SCOTUSblog (Mar. 25, 2016, 1:54 PM), http://www.scotusblog.com/2016/03/legal-history-highlight-justices-who-left-the-court-for-better-positions/