Five Justices and Why They Left the Court for “Better” Positions

Abstract

Five Justices and Why They Left the Court for “Better” Positions JAMES F. FLANAGAN Justices are notoriously reluctant to leave the Court. Forty-nine died in office, and age and illness prompted almost all the others to depart.1 Yet five Justices did leave for another, and perhaps, better job. They were, in the order oftheir resignations, John Rutledge, the first senior Associate Justice, who resigned in 1791 to become the Chief Justice of the South Carolina Court of Common Pleas and General Sessions; John Jay, the first Chief Justice, who followed in 1795 after being elected governor ofNew York; Charles Evans Hughes, who resigned in 1916 to be the Republican candidate for President; James F. Byrnes, who left in 1942 to become the Director of the Office of Economic Stabiliza­ tion; and Arthur Goldberg, who resigned in 1965 to serve as the U.S. Ambassador to the United Nations. All were in good health and in the prime of their careers. Byrnes was sixty, Jay was forty-nine, and the others were in their fifties. All had been offered and accepted the new position when they resigned and, but for that new job, would have remained on the Court. Understanding the reasons that prompted each to leave the most powerful and presti­ gious position in the federal judiciary reveals much about the men, their times, and the Court. Was their momentous decision a cause of later regret, or did they find their subsequent careers more important and fulfilling? These Justices shared some important characteristics. All were men of action and political affairs. All came to the Court as national political figures. Three had been elected to high office, Rutledge and Hughes as governors of their respective states and Byrnes as a senator, and the latter two were mentioned as potential national candidates. Jay held important positions under the Articles of Confederation and was its chief diplomat and one of the founders of the republic. Goldberg was in the high counsels of the labor movement and deeply immersed in state and national politics before becoming Secretary of Labor. Although they sat on the highest court in the country, the judiciary had not played a FIVE JUSTICES WHO LEFT THE COURT 73 prominent role in the earlier careers. Jay had some minorjudicial experience and Rutledge had sat as a judge in equity for the five years before his appointment. He had, however, oscillating views on which court was more important to him. He left the state equity court to join the Supreme Court but resigned in 1791 to return to the state Court of Common Pleas. Amazingly, he sought reappointment and was reappointed to the Court in 1795, only to become the first nominee and first interim appointee to be rejected by the Senate. Only Hughes and Goldberg enjoyed the life of a Justice. Wars and rumors of wars were key to four of the five resignations. Jay was a diplomat and subsequently governor of a key state as Washington tried to avoid entanglements in the war between revolu­ tionary France and Great Britain in the 1790s. Hughes was a presidential candidate with World War I raging in Europe. Byrnes became the economic czar in World War II and Goldberg was a presidential advisor and diplomat during the Vietnam conflict. Finally, the resignations are unevenly grouped. Two occurred in the early 1790s and three in the half-century between 1916 and 1965. There have been no similar resignations in the fifty years since Justice Goldberg left the Court. Why the role of a Justice was less attractive to these men, and during those times, provides another perspective on the Court. A few other Justices also resigned in mid-career for reasons peculiar to each, including Benjamin Curtis and Abe Fortas, but the most interesting stories are the five Justices who specifically resigned to take other high positions in government service. One other Justice must be noted in the context of resignations and post-Court positions. Justice David Davis submitted his resignation from the Court on the morning of March 5, 1877 and was sworn in as a senator that afternoon. Unlike the others, however, the motive for his resignation was not...