MATTER OF DELICACY - The Court Copes With Disability

MERLO J. PUSEY

(Over the years, an occasional problem has arisen when failing faculties of a Justice has demanded the concern of his brethren. Early Court historians tended to gloss over the problem; but the present author, a perceptive and widely recognized student of the Court, has dealt with it with grace and frankness.–Ed.)

It is no secret that the Supreme Court has sometimes been concerned about senility on the part of some of its members. Under Article III of the Constitution, "judges, both of the Supreme and inferior courts, . . . hold their offices during good behavior, and receive for their services, a compensation, which shall not be diminished during their continuance in office." The historical record shows that this essential safeguard of judicial independence encouraged some justices to remain on the bench after age had sapped their vitality. For a long time the problem was accentuated by the failure of Congress to provide adequate pensions for retiring justices.

The great Chief Justice John Marshall retained his vigor through thirty-four years on the Supreme Bench until shortly before his death in 1855. Near the end of that momentous era Justice Joseph Story wrote of his colleague: "Chief Justice Marshall still possesses his intellectual powers in very high vigor," although his physical strength was failing. It was also evident that the Court over which he presided was suffering from ravages of time. Marshall's biographer, Albert J. Beveridge, describes the condition of the Court as follows: "Justice (Bushrod) Washington was dead. (William) Johnson was fatally ill, and (Gabriel) Duval, sinking under age and infirmity, was about to resign."[1]

These disabilities in the Court gave Marshall some serious problems. Two important cases were argued extensively before the Court, one involving a Kentucky statute which in effect created a state currency that could be used to pay public or private debts and the other a New York statute authorizing the mayor of New York City to exclude impoverished foreigners whom he deemed undesirable. Both acts were repugnant to the Constitution as interpreted by the Marshall Court, the Kentucky case apparently being controlled by Craig v. Missouri and the New York case by Gibbons v. Ogden. But only Marshall, Story, Duval and Johnson took that view. Justices Smith Thompson, John McLean and Henry Baldwin wanted to uphold the statutes, and since Johnson was absent because of his serious illness no decision could be handed down. Incidentally, it was this impasse which caused Marshall to an-ounce for the first time the Court's practice not to deliver (except in cases of absolute necessity) "any judgment in cases where constitutional questions are involved, unless four judges concur in opinion, thus making the decision that of a majority of the whole court."[2] In the absence of a majority the Kentucky and New York cases were not decided until after Marshall's death, and his constitutional views were then repudiated in both instances.

Marshall's successor, Chief Justice Roger B. Taney, held his post for twenty-nine years by which time he was eighty-seven and no longer able to function effectively. More than two years before his death Taney asked each of his brethren to call on him before leaving Washington for the summer. Having a presentiment of approaching death, he told them he did not expect to see them again. But the following winter he was still clinging on, although he was able to be in court only a few days during the 1863-64 term. His biographer tells us that "his mind continued to function clearly, but his body grew steadily weaker, until his physician remarked on his resemblance to a disembodied spirit."[3] Unable to sit up at times, he spent many hours in bed reading. Taney's condition led Senator Benjamin F. Wade to wisecrack: "No man ever prayed as I did that Taney might outlive James Buchanan's term, and now I am afraid I have overdone it." [4]

In the spring of 1864 Attorney General Edward Bates remarked that Justices James M. Wayne, John Catron and Robert C. Grier as well as Chief Justice Taney were "obviously failing" and might resign if Congress would provide them with adequate pensions. A bill for this purpose was much discussed, but Congress failed to pass it and there were no resignations. The Court remained under a severe handicap until Taney's death in October, 1864.

The naming of a new Chief Justice, Salmon P. Chase, was only a partial solution. Justice Grier was still on the bench when the momentous Legal Tender Cases came before the Court. Grier's physical disability led him to ask both the Chief Justice and the clerk of the Court for permission to live in the Capitol. "If I could have a room in the Capitol on the level of our court room," he wrote to Chase, "so as not to be compelled to 'get up stairs' I could attend to my duty at Washington as usual, if my health continues."[5] No such room was available.

When Hepburn v. Griswold was decided three years later Grier's condition had further deteriorated. The Hepburn case was discussed in the judicial conference of November 27, 1869, with all the eight justices who then constituted the court participating. The outcome is reported by Charles Fairman in The Oliver Wendell Holmes Devise History of the Supreme Court of the United States as follows:

When a division was taken, Chase, (Samuel) Nelson, (Nathan) Clifford and (Stephen J.) Field voted to affirm–Grier, (Noah H.) Swayne, (Samuel F.) Miller and (David) Davis to reverse. A question was made whether Grier really meant to vote as he did. He replied that he understood the Kentucky court to have held the legal tender statute unconstitutional, and that he voted to reverse. So Hepburn v. Griswold was declared to be affirmed by an equally divided court.

An even division would establish no principle.

Then Broderick's Executor v. Magraw was considered. Here Justice Grier made some remarks inconsistent with the vote he had just given. This was brought to his attention. He was reminded that in conversation with another member of the Court he had taken a view different from that of any of the other Justices. The upshot was that he changed his vote in the Hepburn case, thus making a 5-to-3 decision against the statute as applied to preexisting debts.[6]

With this dubious support, the Court held the Legal Tender Act unconstitutional in respect to contracts made prior to its passage. Before the decision was announced, however, the Justices unanimously urged Grier to resign. With Grier and Nelson particularly in mind, Congress had passed a law allowing any judge to continue on full salary for life if he resigned after reaching the age of seventy and had served for at least ten years. Soon after the new law became effective, Grier sent in his resignation. On January 29, two days before Grier left the bench, Chief Justice Chase presented his opinion in the Hepburn case and obtained approval from Justices who stood with him, but the opinion of the dissenters was not ready. So the decision was not actually handed down until February 7, 1870, after Grier had left the bench. Chase concluded his opinion with this statement:

It is proper to say that Mr. Justice Grier, who was a member of the Court when this cause was decided in conference, Nov. 27, 1869, and when this opinion was directed to be read (Jan. 29, 1870), stated his judgment to -be that the legal tender clause, properly construed, has no application to debts contracted prior to its enactment; but that upon the construction given to the Act by the other Judges he concurred in the opinion that the clause, so far as it makes United States notes a legal tender for such debts, is not warranted by the Constitution.[7]

There was a great deal of furor over the case at the time and it has tended to ring down through judicial history. That is not surprising, for the evidence of Grier's wobbling is unmistakable. All the other members of the Court were sufficiently concerned about it at the time they urged Grier to resign. Yet even after he had done so, the foursome led by Chief Justice Chase took advantage of Grier's dubious vote to invalidate a law that many deemed essential to the nation's survival in times of emergency such as the Civil War. Within a year and a half the Court overturned that decision and declared the Legal Tender Act a valid exercise of the congressional war power. The latter decision was made possible, however, by the presence of two new Justices on the Court, William Strong and Joseph P. Bradley, whose nominations had unfortunately gone to Congress on the very day the Hepburn decision had been handed down.

President Ulysses S. Grant denied that he knew anything about the Legal Tender decision when the appointments were made, and history seems to sustain that assertion, but the net result was an impairment of confidence in the Supreme Court. When Charles Evans Hughes wrote about the Court as a member of the bar, before he became Chief Justice, he cited this abrupt overturn of a decision involving a vital constitutional issue as one of the Court's "self-inflicted wounds."[8] But surely the initial cause of this "self-inflicted wound" was the willingness of Chief Justice Chase to hang a momentous decision on the vote of a justice who could no longer properly address himself to the issues involved. The other "wounds" that Hughes singled out for special comment were the Dred Scott decision and the Court's invalidation of the income tax by one vote after a member of the Court had changed his vote.

Twenty-eight years after the historic Hepburn decision, Justice Field was still on the bench, and his brethren became concerned about his ability to render adequately considered decisions. Justice John M. Harlan was assigned the task of reminding Field that he had been a member of the committee that had waited upon Justice Grier in the hope of inducing him to retire. Perhaps Field would take the hint. Harlan found the aged jurist on a settee in the robing room "apparently oblivious to his surroundings." Arousing him, Harlan talked as tactfully as he could about the work of the Court and then asked if Field could recall how anxious the Court had been with respect to Justice Grier's condition and the feeling of the other justices that, in his own interest and in that of the Court, he should give up his work.

"Do you remember," Harlan asked, "what you said to Justice Grier on that occasion?" As Harlan talked the old man aroused himself until his eyes were blazing. "Yes!" he burst out. "And a dirtier day's work I never did in my life!"[9]

That ended the efforts of the brethren to hasten Field's departure, but he did resign in December, 1897.

After the election of William Howard Taft to the Presidency in 1908 concern over senility on the bench became acute at the White House. Having been a Circuit Court judge himself, Taft manifested a special interest in the administration of justice. On May 22, 1909, he wrote to his old associate, Circuit Judge Horace H. Lurton, in rather intemperate terms:

The condition of the Supreme Court is pitiable, and yet those old fools hold on with a tenacity that is most discouraging. Really the Chief Justice (Melville W. Fuller, then seventy-six) is almost senile; Harlan does no work; (David J.) Brewer is so deaf that he cannot hear and has got beyond the point of the commonest accuracy in writing his opinions; Brewer and Harlan sleep almost through all the arguments. I don't know what can be done. It is most discouraging to the active men on the bench.[10]

When Justice William H. Moody, one of the younger members, became ill and thus threw a heavier burden on the other active judges, Taft wrote to Cabot Lodge that he could scarcely restrain himself from making a statement about the condition of the Court in his annual message to Congress. Taft appears to have been especially irritated by the thought that Chief Justice Fuller was over-staying his time. Had Fuller resigned in 1905, when he should have done, in Taft's view, the great position of Chief Justice which he (Taft) prized above all others would now be his.[11]

When Justice Rufus W. Peckham was incapacitated by a heart ailment, Justice Edward D. White sent word to the White House that the "condition of the court is such that any vacancy which occurs ought to be filled at the earliest possible moment."[12] Peckham died in October, 1909, and the President, brushing aside his own determination to reinvigorate the bench, chose an old friend and associate, Judge Lurton, to fill the vacancy. Lurton was not far from his seventieth birthday.

Perhaps repenting of this bow to friendship the next time he had an opportunity to rejuvenate the bench, on the death of Justice Brewer in 1910, Taft offered the place to Governor Charles Evans Hughes of New York, then only forty-eight. Indeed, the President wanted to make Hughes Chief Justice if only Fuller would bow to the inevitable. When he wrote Hughes offering the associate justiceship, Taft said that he expected the chief justiceship to be vacant soon and indicated his disposition to offer that place to Hughes whether or not the Governor accepted the post then vacant. In a postscript Taft then added: "Don't misunderstand me as to the Chief Justiceship. I mean that if that office were now open, I should offer it to you and it is probable that if it were to become vacant during my term, I should promote you to it; but, of course, conditions change, so that it would not be right for me to say by way of promise what I would do in the future."[13]

Several months before Hughes took his seat as associate justice in October, 1910, however, Fuller died. Rumors spread through the press and by word of mouth that Hughes was to be the new Chief Justice. Taft's concern about vigor on the Supreme Bench was well known. The President's good friend Justice Lurton intimated to Hughes that he was to be the new Chief, and Justice Oliver Wendell Holmes reported a similar assumption in one of his famous letters to Sir Frederick Pollock. But Taft found it difficult to make up his mind. When he sounded out the other Justices through Attorney General George W. Wicker-sham, he found many of them disgruntled over the idea of making the youngest member of -the Court its presiding officer. This view was also conveyed to members of the Senate Judiciary Committee, and six of them waited on the President to make him see the point. Hughes himself concluded that he would have a terrible time presiding over those old men, whose distaste for youth at the helm had already been painfully manifested in the conferences he had attended.

After five months of procrastination, the White House summoned Hughes for a conference with the President. While he was dressing for the occasion, the telephone rang again and the proposed interview was cancelled. The next day the nomination of Justice White to be Chief Justice went to the Senate. Taft had bowed to experience rather than vigor to the satisfaction of almost everyone, including Hughes himself, despite his irritation over the President's procrastination. The evidence suggests that Taft did not change his mind in the few minutes that elapsed between the telephone calls to Hughes; he was just loath to face Hughes and make an explanation.

It is interesting to note that Taft's bow to experience made possible the realization of his own great ambition. At one time White appeared willing to step down while he was still in good health. That was in 1916 when it appeared that Justice Hughes was about to be drafted as the Republican candidate for President. White, a Democrat, informed Hughes that he was going to resign and that if Hughes remained on the bench President Woodrow Wilson would name him Chief Justice.[14] Hughes scoffed at the suggestion and, after his nomination, conducted a vigorous campaign against Wilson, only to lose by failing to shake the hand of the Progressive Senator Hiram Johnson in California. Whether or not White was resentful toward his own political party over the approach he had been induced to make to Hughes, he told Taft that he would keep the Chief Justiceship open for him by holding on until the Republicans were again in power.[15] He did so even though his sight was gravely impaired and his health was poor in his last years.

When White died in May, 1921, Warren G. Harding was President and speculation in regard to White's successor seemed to center in Taft and Hughes, but the latter was then Secretary of State and had no inclination to gratify the isolationists in the Senate, who were gunning for him, by accepting any other position. Undersecretary Henry Fletcher asked Hughes if the speculation about him shifting to the Chief Justiceship were true. Hughes replied with characteristic finality.

"No," he said. "If the President should offer me the Chief Justiceship, I would not accept it and I would resign as Secretary of State."[16]

"I'm going to play golf with the President this afternoon," Fletcher replied. "Do you want me to tell him what you have just said?"

"Yes," Hughes replied.

Harding's response to Fletcher was that he was going to appoint "old man Taft" to the Court. Taft was then nearly sixty-four and would be able to hold the position he had wanted more than anything else in life for less than a decade. His vigorous efforts to rejuvenate the Court and to improve the entire judicial system came to an end in December, 1929, when, desperately ill, he sought rest in North Carolina. Still he was reluctant to resign until given assurance, through a series of interviews involving President Herbert Hoover, Attorney General William D. Mitchell and members of the Court, that Hughes would be his successor.

Hughes brought new energy, system and esprit de corps into the Court, but it was soon apparent that one age problem would have to be dealt with. His dear venerated, brilliant friend, Justice Holmes, celebrated his ninetieth birthday in 1931, and Hughes was among many who lauded his. achievements. On the bench, however, the grand old man had great difficulty in keeping his head up and his eyes open. He would pile books in front of this face and go to sleep on the bench. Hughes shielded him by giving him only easy opinions to write. In January, 1932, a majority of the brethren urged Hughes to seek Holmes's resignation out of fear that his condition would bring the court into disrepute. The "Chief," as he was generally known in the Court, consulted Justice Louis D. Brandeis and the latter agreed that Holmes ought to go.

Conscious of all the unpleasantries resulting from previous efforts of this kind, Hughes went to visit the Magnificent Yankee one Sunday morning. Using all the diplomacy he could command, he built up to the point that Holmes was carrying too heavy a burden for a man of his years. A great jurist who had given exemplary service to his state and nation for forty-nine years should not continue to overstrain his physical resources. Holmes seemed actually relieved to be thus pushed a little. "Give me the statute book," he requested, pointing to the shelf where it rested, "and I'll write out my resignation right now."[17] There followed a sentimental parting at the Court. Chief Judge Benjamin Cardozo of the New York Court of Appeals was named to take Holmes's place. The Court continued its operations at the very brisk pace that Hughes had set.

The next time that a controversy arose over the age of Justices and alleged inability to carry out the responsibilities of the Supreme Court with dispatch was in 1937. The Court had invalidated some of the recovery measures that President Franklin D. Roosevelt had recommended and Congress had hastily enacted with little thought of their validity under the Constitution. Soon after his sweeping second victory at the polls in 1936, the President sent to Congress his controversial bill to add six new seats to the Supreme Court–an additional Justice for each member who had been on the bench for ten years and had not resigned within six months of reaching the age of seventy. This admittedly drastic measure was defended on the ground that it was essential to relieve the Court of congestion and resulting injustice.

The furor resulting from the bill is now a dramatic chapter in American history. The immediate targets of the bill were Chief Justice Hughes and Associate Justices Brandeis, Willis Van Devanter, James C. McReynolds, George Sutherland and Pierce Butler. The President's call for the replacement of judges of "lowered physical and mental vigor" by an "infusion of new blood" into the judiciary was especially painful to Brandeis, the oldest member of the Hughes Court, a Democrat and an eminent liberal who was still alert and vigorous despite his age. Justice Owen J. Roberts told his colleagues that he would resign if the bill became law even though he would not be personally affected by its terms. Hughes, then a robust seventy-four, decided to fight the bill quietly and to save the Court from humiliation at all cost. "If they want me to preside over a convention," he said "I can do it."[18]

One primary factor in defeat of the bill in the Senate was Hughes's calm, factual letter to Senator Burton K. Wheeler refuting the President's accusations that the Court was behind in its work because of age and disability. The Court was up to date in its disposition of cases. Without venturing into the court-packing aspects of the bill, Hughes said it would impair the efficiency of the Supreme Court by adding "more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide."[19]

The defeat of this bill is an oft-told tale, but it was no victory for senility on the bench. Two members of the court who were ailing had wanted to retire before 1937. They had refrained from doing so because Congress had unreasonably reduced the compensation of Justice Holmes after his retirement. Senator William E. Borah apparently induced Van Devanter to resign while the fight was still going forward, and Justice Butler retired soon after Congress amended the law to permit Justices to step down without loss- of compensation. Brandeis retired gracefully in 1939 at the age of eighty-three after suffering a heart attack, before there could be any reasonable complaint of mental deterioration on his part.

As for Hughes, he was very alert to the danger of clinging to power too long. After ascending the bench a second time he made an arrangement within his family–Mrs. Hughes, his son Charles Evans Hughes, Jr., his daughters and sons in law–that if any one of them felt he was slipping, he or she would come to him in private and say so. No one of them had any such apprehension, but Hughes concluded at the end of the Court's term in 1941 that he would no longer be able to carry the load of the Chief Justiceship without slowing down. So he sent his decision to retire to the White House and became the first Chief Justice to lay down the reins in good health since John Jay resigned in 1795 to become governor of New York. He lived another seven years in quiet retirement.

There has been much talk at various times in the history of the Court about compulsory retirement for Justices, but no satisfactory age limit has ever emerged. Forced retirement at seventy or even seventy-five would have deprived the Court of many brilliant minds still in full vigor. With the precedents for retirement in good season more numerous in recent years, the possibility of a compulsory retirement age seems remote.

Robert H. Jackson, who had been an ardent supporter of the "new-blood"-on-the-bench campaign when he was Assistant Attorney General, told the author of this article that he had changed his mind about one thing after becoming a member of the Supreme Court. "It is great to have some old men on the bench," he said. "They know everything that has been decided in the past which must necessarily influence what we do today." It is reasonable to conclude that the struggle for experience, wisdom and mature judgment in the Supreme Court–without decrepitude–will continue as long as the Court sits. History also suggests that the Court will retain the right and the responsibility of dealing with its own problems of this kind when and if they arise.

Endnotes

1. Beveridge, Albert J., The Life of John Marshall, Vol. IV, pp. 581-82.
2. Beveridge supra, p. 583.
3. Swisher, Carl Brent, Roger B. Taney, p. 572.
4. Swisher supra, p. 573.
5. The Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Vol. VI, part one, p. 83.
6. Holmes Devise supra, p. 716.
7. Holmes Devise, supra, p. 713.
8. Hughes, Charles Evans, The Supreme Court of the United States, p. 50.
9. Hughes supra, p. 76.
10. Pringle, Henry F., The Life and Times of William Howard Taft, Vol. I, pp. 529-30.
11. Pringle supra, p. 530.
12. Ibid.
13. Pusey, Merlo J., Charles Evans Hughes, Vol. I, pp. 271-72.
14. Pusey, supra, p. 324.
15. Pringle supra, Note 10, p. 955.
16. Pusey supra, Note 13, Vol. II, pp. 429-30.
17. Author's interview with Hughes, Jan. 7, 1946.
18. Pusey supra, p. 753.
19. Pusey supra, p. 756.