The Politics of Disabled Supreme Court Justices

Abstract

The Politics of Disabled Supreme Court Justices JUDGE GLOCK Supreme Court history is littered with stories of incapacitated or disabled Justices lingering long past their prime. Sometimes, disabled Justices have merely delayed the work of the Court. At other times, they have brought the work ofthe Court into disrepute.1 Yet in more than 200 years of political and constitutional debate, the U.S. political system has never found a satisfactory answer to the problem of disabled Justices. At certain periods in U.S. history, how­ ever, Congress and the President have inter­ vened to entice or push disabled Justices from the bench. Although researchers have noted how Congress passed pension acts for federal judges in general, and even pension acts for individual disabled Justices, they have neglected to note how politics and personal finances played an essential part in when and how Congress decided to pension individual Justices, and how, as many of the pension acts were time-limited, Congress essentially pushed some Justices from the bench.2 The pension bills for disabled Justices have thus created a type ofjudicial dependence on the elected branches of government that other constitutional provisions tried to avoid. This article will look at how Congress and the President have struggled to entice or remove disabled Justices from the bench. It will focus on how they used time-limited pensions to convince two Justices, Ward Hunt and William Moody, to leave.3 It will also examine how these acts influenced President Franklin D. Roosevelt’s Court-Packing Plan, or “Un-Packing” Plan as some saw it at the time, since the plan tried to induce older and disabled Justices to leave the bench.4 One final, though forgotten, effect of the failure of Roosevelt’s plan was the passage of a con­ gressional act to allow voluntary retirement for disabled Supreme Court Justices, which is still in effect today. The Early Debate on Judicial Disability Judicial Disability and the Constitution The American Constitutional Conven­ tion in 1787 had to ponder the important 152 JOURNAL OF SUPREME COURT HISTORY question of how to ensure both judicial independence and accountability. From early in the Convention, the attendees agreed on the English standard ofjudicial independence on the bench during the “good behavior” of the judges, subject only to the impeaching power of Congress.5 Some who supported this standard, however, still thought there should be an alternative way to remove judges. On August 27h, the scholarly John Dickinson of Delaware submitted a motion to the Convention that would have allowed Congress to vote, by mere majority, on an “address” to the President against a particular judge, after which the President could remove thatjudge, without impeachment and without showing of bad behavior.6 The main impetus behind Dickinson’s amendment appears to have been a desire to remove disabled judges. It was a modified version of the British Parliament’s “address to the king,” under which the British Par­ liament, since 1700, could remove judges without impeachment. It was also a version of Massachusetts’s 1780 constitutional pro­ vision allowing for legislative “removal by address,” a variant of which was included in the constitutions of at least four other states. The general assumption was that such an address would be used as a type of “removal for incapacity.”7 Yet, despite the support of Elbridge Gerry and John Sherman, the Constitutional Convention voted against Dickinson’s proposal.8 Some at the time still worried about the absence of such a clause for incapacitated judges. Alexander Hamilton, in Federalist 79, noted “The want of a provision for re­ moving the judges on account of inability has been a subject of complaint.” But Hamilton worried that “An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests ofjustice or the public good.” Although Hamilton noted that New York had taken “a particular age as the cri­ terion of inability,” in that case age sixty, he thought such a strict line was both arbitrary and unfair. In effect, Hamilton thought there could and should be no special provision for disabled judges.9 Still...