Vol. 9 No. 7 (July 1999) pp. 285-287.
LEAVING THE BENCH: SUPREME COURT JUSTICES AT THE END by David N. Atkinson. Lawrence: The University Press of Kansas, 1999.
Reviewed by Lawrence Baum, Department of Political Science, Ohio State University.
Sometimes you CAN tell a book by its cover. On the cover of David Atkinson's LEAVING THE BENCH is a photograph of Thurgood Marshall sitting in his Supreme Court chambers, a picture in which Justice Marshall looks old and unwell. The book itself deals with the departures of justices from the Court, and it gives greatest attention to the aging and infirmities that have been the primary cause of these departures.
LEAVING THE BENCH has three connected purposes: "to suggest why justices leave the Court and why some refuse to leave; to provide a description of how each justice left; and to ask when justices should leave" (p. 1). The book is based on extensive research that Professor Atkinson has conducted over the years. His research on some historical periods has been reported in law review articles. This book expands on those articles, covering the Court's entire history and pulling together the implications of that history. In a series of chronologically organized chapters, Atkinson discusses the circumstances under which each of the justices left the Court. Each of these chapters also summarizes patterns of departure from the Court in the era it covers. An introductory chapter discusses why justices leave the Court or stay in their jobs, and the concluding chapter considers how best to avoid the problems that occur when justices stay too long.
Atkinson draws from a variety of sources for his narratives on the justices: "newspapers, biographies, memoirs, diaries, historical studies, private letters, and interviews" (ix). The dearth of information on some of the early justices made it possible to present only brief narratives about them. Other narratives are more extensive. In many of the longer narratives Atkinson goes beyond departures from the Court to present other interesting tidbits about the justices. Anyone who is not expert in the Supreme Court's history will learn a variety of new things about the justices.
This is especially true of justices who served prior to this century. For instance, I had not been aware that James Wilson (1789-98) was twice imprisoned for debt while he served on the Court. The second imprisonment was for a debt of $197,000, which sounds like a lot in 1797 dollars. It is fairly well known that Georgian John Campbell resigned from the Court in 1861 and later served as a skilled advocate for business interests. It is not as well known that, as Atkinson reports, the Confederacy "never created a Supreme Court because [Campbell's] opponents feared he might be appointed to it" (p. 38).
While recent justices are more familiar to scholars, that is not true of much of the information that Atkinson presents about their health conditions and other circumstances relating to their departures from the Court. For example, in contrast with the efforts that some administrations have made to create vacancies on the Court, Eisenhower's attorney general William Rogers twice tried to dissuade Harold Burton from retiring. In the narratives on justices who served in the past half century, perhaps the most noteworthy contribution is Atkinson's use of interview material to illuminate the severe stresses that Charles Whittaker felt in doing his work on the Court.
A few scholars have probed the factors that affect departures from the Supreme Court through quantitative analysis. Atkinson's introductory chapter takes a different approach, identifying the range of influences justices' decisions to stay or leave and assessing their impact in broad terms. A reading of his narratives about individual justices also provides a good sense of the most powerful factors and how they have operated.
The book's narratives underline the part that Congress plays in determining the justices' tenure. The most important form of congressional action has been legislation affecting the financial impact of leaving the Court. Atkinson documents the critical role of financial considerations in inducing several justices to remain on the Court, and he describes the use of special pension bills to induce the departures of some justices. Of course, the establishment of a generous retirement system in 1937 has made it more attractive for justices to leave their positions and thus has had considerable impact on the Court.
Also important, as Atkinson shows, was the provision in the Judiciary Act of 1789 which mandated that the justices sit in circuit court. Circuit-riding duties did so much harm to the health of so many justices in the early nineteenth century that trips out to the circuits could have been classified as suicide missions. Improvements in transportation and the elimination of circuit-riding duties in 1891 undoubtedly allowed some justices to stay on the Court longer than they would have in an earlier era. The same certainly is true of advances in medicine. As described by Atkinson, many of the nineteenth century justices succumbed to maladies that could be treated far more effectively today.
Atkinson underlines the difficulties that have arisen from the unwillingness of some justices to leave the Court when they were no longer able to function effectively in their jobs. In his last chapter, he explores the question of how those difficulties might be minimized. He concludes that establishment of a mandatory retirement age would be undesirable, in part because the underlying problem has declined: "Although it happened often enough during the nineteenth century, there have been no recent instances of justices clinging to their seats for years after falling into decrepitude, despite relatively short-term disabilities" (p. 167). He ascribes this development to the 1937 retirement statute, to increased use of peer pressure to induce retirements, and to growing scrutiny by the mass media.
Yet Atkinson believes that the refusal of some justices to leave the Court when their capacities decline causes serious harm even in the current era. In his view, "unless some changes are made, I am pessimistic about the Court's future" (xi). Within the current system of a life term, he offers some recommendations for the Court and its justices.
The most novel of these recommendations is that the role of law clerks be limited. As a general matter, Atkinson disapproves of the clerks' playing a substantial part in the Court's decision making. More specifically, he posits that law clerks reduce the effectiveness of peer pressure on weakened justices by allowing their work to continue "as if nothing is wrong" (p. 178). He offers as a possible solution that law clerks serve the Court as a whole rather than individual justices.
Atkinson has another striking proposal. He suggests that, "should the justices prove increasingly reluctant to leave at or about age seventy-five" (p. 180), Congress might consider a more limited version of Franklin Roosevelt's Court-packing plan. In this version additional justices could be appointed for each justice over seventy-five, with a maximum of two (compared with six in Roosevelt's proposal). That step, he says, might induce justices to treat the designated age as an appropriate time to leave.
I am far from certain that Atkinson's pessimism about the Court's future is justified and thus that major changes are needed. While aging and disability certainly affect the Court's functioning at times, their impact today is less severe than in most prior eras. And if law clerks mitigate the impact of these weaknesses on the justices' work product, this may not be a bad thing. Of course, pooling the law clerks would have broader effects on the Court, and not all scholars would agree with Atkinson that those effects are desirable. Still, it is quite worthwhile to raise the issue of deterioration in justices' abilities, an issue that students of the Court have given relatively little attention in recent years.
This is one of many contributions that Atkinson makes: LEAVING THE BENCH tells us a good deal about the Supreme
Court and discusses important questions about the Court's work in an interesting way. It provides a substantial
body of raw material for those who seek to understand justices' decisions to stay on the Court or leave it, decisions
that in turn can help in understanding the justices' perspectives and motivations. And scholars and others who
are interested in the Court's history for its own sake will enjoy delving into what Atkinson has found out about