Deciding to Leave

The Politics of Retirement from the United States Supreme Court

By Artemus Ward

Subjects: American History
Series: SUNY series in American Constitutionalism
Paperback : 9780791456521, 358 pages, January 2003
Hardcover : 9780791456514, 358 pages, February 2003

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Table of contents

List of Illustrations and Tables


1. The Politics of Departure in the U. S. Supreme Court


Departure in Comparative Perspective
Departure Politics in Historical Context


2. 1789–1800: Traveling Postboys


Indisposition and the Early Supreme Court
Disagreeable Tours


3. 1801–1868: Crippled Courts


Army of Judges
Imminent Danger of Sudden Death
Needy and Half-Paid Men
Abridgement of Tenure, Facility of Removal, or Some Other Modification
If Mr. Clay Had Been Elected


4. 1869–1896: Old Imbeciles on the Bench


Dangerous in its Operation
1869 Retirement Act
The Disputed Election of 1876
The Evarts Act


5. 1897–1936: Old Fools and Young Spirits


The Field Effect
Evarts Act Redux
Increased Caseloads


6. 1937–1954: Senior Status


A War with a Fool at the Top
1937 Retirement Act
Untimely Deaths


7. 1954–1970: The Limits of Power


1954 Retirement Act
Cantankerous Fellows
An Extraconstitutional Arrangement


8. 1971–1999: Appointed for Life


He Ought to Get Off the Court Too
Old and Coming Apart


9. 2000–Present: A Self-Inflicted Wound


The Disputed Election of 2000
That’s For Me to Know and You to Find Out


10. Conclusion: Imaginary Danger?


Ability and Inability
The Rule of 100
Lightening the Burden
Mandatory Retirement


Appendix A


Letter from Byron White to Warren Burger, Oct. 20, 1975


Appendix B


Letter from Warren E. Burger, William J. Brennan, Jr. , Potter Stewart, Byron R. White, Thurgood Marshall, Harry A. Blackmun, Lewis F. Powell, and William H. Rehnquist to William O. Douglas, December 22, 1975


Appendix C


Letter from John Paul Stevens to William H. Rehnquist, October 28, 1988





The first sustained examination of the process by which justices elect to leave the United States Supreme Court.


While much has been written on Supreme Court appointments, Deciding to Leave provides the first systematic look at the process by which justices decide to retire from the bench, and why this has become increasingly partisan in recent years. Since 1954, generous retirement provisions and decreasing workloads have allowed justices to depart strategically when a president of their own party occupies the White House. Otherwise, the justices remain in their seats, often past their ability to effectively participate in the work of the Court. While there are benefits and drawbacks to various reform proposals, Ward argues that mandatory retirement goes farthest in combating partisanship and protecting the institution of the Court.

Artemus Ward is Assistant Professor of Political Science at Northern Illinois University.