While the recent talk of “court packing” is profoundly stupid considering one of history’s most popular presidents couldn’t get the public or even his own party behind it, there is something to be said about Supreme Court justices sticking around too long. This is not to suggest that the Republicans ought to propose a measure capping service at the age of 80 to boot Ginsburg and Breyer, for that would be most devilish and unwise. However, justices have stuck around too long before and there have been consequences for it, and in more than one instance said justices were the deciding votes in crucial cases. Chief Justice Charles Evans Hughes once stated, “it is extraordinary how reluctant aged judges are to retire and give up their accustomed work” (Garrow, 997). Ailments that justices have suffered included severe depression, dementia, and mental derangement. I’m not one who usually likes to spare readers on details, so I have compiled a list of justices who suffered problems severe enough to impact their judgment at different times in court history. Quite frankly it is amazing how the court was able to carry on in spite of these cases!
Justices who Suffered Depression, Severe Mental Illness, or Drug Impairment:
John Rutledge (1739-1800), Court Service: 1795.
The only justice to have attempted suicide, Rutledge was a recess appointment and an erratic figure who sunk his own confirmation as chief justice by giving a fiery speech against the Jay Treaty. This had already been confirmed by the very Senate that was voting on his nomination, and he lost the vote.
Henry Baldwin (1780-1844), Court Service: 1830-1844.
Allegedly insane after his first two years, according to those around him including his fellow justices. In 1833, he was hospitalized for “incurable lunacy”. According to Justice Joseph Story, he was consistently in a state of “partial derangement”. He developed no consistent judicial philosophy but was the court’s strongest defender of slavery.
Frank Murphy (1890-1949), Court Service: 1940-1949.
By the late 1940s, Justice Murphy had developed health problems and drug addictions. He was addicted to the sleeping medication Seconal and then the painkiller Demerol. By his last year, Murphy was buying drugs illegally twice a day. As a consequence, he would often not be deciding his own votes, with Justices Rutledge, Black, and Murphy’s clerk deciding what his votes should be.
Charles Whittaker (1901-1973), Court Service: 1957-1962.
Justice Whittaker was accused of having failed to develop a legal philosophy (but overall leaned conservative in rulings), felt completely overwhelmed by his duties on the court, was often lobbied by the liberal and conservative wings in cases and would usually choose whichever side had made the last as opposed to best argument. He already had suffered from depression and this resulted in indecisiveness and nearly drove him to suicide. Whittaker ultimately suffered a nervous breakdown in 1962, forcing his retirement.
William Rehnquist (1924-2005), Court Service: 1972-2005.
Justice Rehnquist suffered from severe back pain, and was prescribed Placidyl throughout the 1970s to address this issue. However, by 1981, the drugs had taken their toll on him as he slurred his speech and suffered hallucinations. Rehnquist was hospitalized that year and weaned off the drug. By 1982, he had fully recovered and would be promoted to chief justice, serving until his death in 2005.
Justices Who Grew Too Old, Developed Disabling Health Problems, or Became Senile:
William Cushing (1732-1810), Court Service: 1789-1810.
The last judge to wear a full wig, Cushing was by 1796 in ill health and declined the post of chief justice on this ground. His mental faculties were waning, and by the last years, he was thought of as deranged. Yet, Cushing refused to retire and died in office.
Robert C. Grier (1794-1870), Court Service: 1846-1870.
Justice Grier suffered three strokes in 1867, rendering him partially paralyzed. His physical and mental abilities had severely declined and by 1869 this was clear to all. His incapacity was significant as it resulted in the overturning of the Legal Tender Act of 1862 (authorizing paper money). The original vote in the Legal Tender Cases was 4-4, but in his confused mental state, Grier changed his mind. Chief Justice Salmon P. Chase bears ethical responsibility for using Grier’s vote to secure his majority. He was finally convinced by his colleagues to retire in January 1870.
Nathan Clifford (1803-1881), Court Service: 1858-1881.
Although Justice Clifford had served ably as a justice, by 1877, his declining mental faculties were clear to all around him. In 1880 he suffered a massive stroke that rendered him, in the words of Justice Samuel Miller, a “babbling idiot” (Garrow, 1007). Clifford did not recognize people he had known and didn’t form sentences that made sense. Clifford participated in no cases in the 1880 session but refused to retire as he hoped a Democrat would be elected in 1880 to pick his successor. He died in office the following year.
Ward Hunt (1810-1886), Court Service: 1872-1882.
After six unexceptional years on the court, Justice Hunt suffered a severe stroke in 1878 that rendered him partially paralyzed and unable to speak,yet would not retire because he would not be eligible for retirement with a full pension unless he had served ten years and reached age 70. Congress passed legislation to grant him a full pension if he retired in 30 days in 1882, and then he agreed to do so.
Stephen J. Field (1816-1899), Court Service: 1863-1897.
Justice Stephen J. Field developed the concept of “substantive due process”, yet in his last years on the court, his faculties deteriorated significantly. By the early 1890s the signs were becoming evident, and by the winter of 1896-97, he was asking questions in court that demonstrated a complete lack of understanding of cases before him. Field would also vote on cases and then forget how he had voted. He was also completely lethargic, and at last retired in December 1897.
William Moody (1853-1917), Court Service: 1906-1910.
Justice Moody’s time on the court was quite short, as he had begun to fall ill in 1908. By 1909 he was diagnosed with ALS, resulting in his retirement in 1910.
Joseph McKenna (1843-1926), Court Service: 1898-1925.
Justice McKenna mentally deteriorated over a period of ten years after suffering a stroke and by 1921 his abilities had become limited. Chief Justice Taft only assigned him simple cases, and even on those he made mistakes. He was finally convinced to retire in January 1925.
William Howard Taft (1857-1930), Court Service: 1921-1930.
By 1929, Taft was observing his own decline, noting that he had become more confused. Knowing the end was nigh, he retired in February 1930, dying one month later.
Sherman Minton (1890-1965), Court Service: 1949-1956.
Justice Minton had only served on the court for six years when he came to the conclusion at the age of sixty-five that both his mental and physical health were failing him. He retired 10 months after writing about the failing state of his health to former President Harry S. Truman.
Hugo Black (1886-1971), Court Service: 1937-1971.
Signs of Justice Black’s deterioration first started to arise in 1966, when he began having memory issues. A stroke in 1969 slowed him down considerably and had caused him to grow increasingly confused and forgetful. He also came to believe that there would be no election in 1972 and the U.S. would be taken over through a military coup. He retired eight days before his death.
John Marshall Harlan II (1899-1971), Court Service: 1955-1971.
Although Harlan didn’t mentally deteriorate, his eyesight deteriorated in the late 1960s to the point that he could not read past an inch from his face and often needed his wife and clerks to read materials to him. By the time he retired on September 23, 1971, he was suffering from spinal cancer, which would kill him three months later.
William O. Douglas (1898-1980), Court Service: 1939-1975.
The longest serving Supreme Court justice in history suffered a stroke at the end of 1974 that incapacitated him for 2 ½ months, and stayed on the court ten months after. In this period, he thought he was the chief justice, slurred his words, addressed people in the Court with incorrect names, couldn’t walk, and feared that people were trying to kill him. Other justices agreed that they would often not count his votes given his condition. Douglas was finally convinced to retire on November 11, 1975. Even after his retirement, he attempted to participate in consideration of cases.
Thurgood Marshall (1908-1993), Court Service: 1967-1991.
Although Marshall had an impressive legal career all the way up to the Supreme Court, in his later years he grew increasingly lackadaisical. He spent hours watching soap operas in his chambers and often left the writing of legal opinions to his law clerks. Marshall also developed hearing loss and would simply vote the way Justice William Brennan did. He had hoped to hold out until a Democrat picked his successor, but the writing was on the wall as to his abilities when in 1991 he accidentally voted favorably on a death penalty case (he always opposed the death penalty) before having to write to his fellow justices to reverse his vote. Marshall subsequently chose to retire.
Chapman, C. (1991, July 4). Octogenarian Justices Are No Asset To The Court. Chicago Tribune.
Garrow, D.J. (2000). Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment. The University of Chicago Law Review, 67(4).
Guerra-Pujol, F. E., The Most Senile Justice? (2015). Supreme Court Micro-Symposium, Forthcoming.
Retrieved from http://dx.doi.org/10.2139/ssrn.998673