The Judicial Service of Retired United States Supreme Court Justices MINOR MYERS III Introduction Biographies of Supreme Court Justices generally devote little attention to the period following retirement. For many Supreme Court Justices, though, departure from the Court is not the end of their service on the federal courts. As Justice Willis Van Devanter noted following his retirement in 1937, “I am still a judge.”1 Justices, like lower court judges, may as sume senior status and sit by designation of the ChiefJustice in any circuit or district in the federal system. Most commonly, they do so on the courts ofappeals. Justice Lewis Powell, for instance, sat regularly as a retired Justice on the Fourth Circuit Court of Appeals in his native Virginia. Rarely, a retired Justice will preside at trial; only Justice Van Devanter and Justice Tom C. Clark sat on district courts after leaving the Bench. While others have looked at Justices’ de cisions to leave the Bench and their final years on the Bench,2 no one has previously endeav ored to examine the senior service of retired Justices. This article fills that tiny gap by ex amining the service of those Supreme Court Justices who in retirement have sat on the lower federal courts. Itbegins by detailingthe history ofthe senior-status provisions, which first ap plied to Supreme Court Justices in 1937. Next, it examines the judicial service of those Jus tices who have elected to serve on the lower courts after assuming senior status. Of the thirty-five Justices who have assumed senior status, nine have sat on the lowercourts. It con cludes by touching on some novel points of interest. JUDICIAL SERVICE OF RETIRED JUSTICES 47 Brief History of Senior Status for the Supreme Court Though judges on federal circuit and district courts were given the option to take senior sta tus in 1919, Supreme Court Justices were not eligible to do so until 1937. Congress created the first retirement pro visions for federal judges in 1869? Prior to that time, as Justices aged and the duties of the postbecame more difficult, some neverthe less held on to their seat to continue receiving the salary.4 Of the twenty-four Justices who departed the Court between 1801 and 1868, twenty ended their service only upon their death? Under the 1869 retirement scheme, a Justice or judge who was 70 years of age or older and had at least ten years of service on the court could retire and continue to receive his salary for life, but he was no longer a part ofthe operation ofthe court of appointment. The 1937 reforms, which set out the basic framework that currently applies to Supreme Court retirements, grew out of President Franklin D. Roosevelt’s Court-packing plan. In 1935, the Supreme Court invalidated portions of the National Industrial Recovery Act,6 and in the following year it struck down portions of the Agricultural Adjustment Act,7 both impor tant components ofRoosevelt’s New Deal. De terminedto see his programs upheld, Roosevelt on February 5, 1937 announced his plan to re organize the federal judiciary. The most con troversial aspect ofthe plan was his proposal to add one Justice to the Supreme Court for each Justice over age seventy who does not retire. The practical effect ofthis would have been to allow Roosevelt to fill the Supreme Court with enough new Justices to upholdNew Deal legis lation. Though its prospects appeared promis ing atfirstbecause Roosevelt’sDemocrats held majorities in both houses of Congress, the proposal soon encountered trouble. Many in Congress came to support a mandatory retire ment age for Justices, but Roosevelt would not compromise? The 1937 Retirement Act was passed on March 1, 1937,9 and its proponents hoped it would siphon offsupport for Roosevelt’s plan. Under the statute, retiring Justices not only would continue to receive their salary, but also could assume senior status. This would permit them, although no longer in regular active ser vice, to continue to be federal judges and to serve episodically on lower federal courts.10 On May 18, 1937, Justice Van Devanter, one ofthe conservative Justices known as the Four Horseman, announced that he would retire, making...