There is precedent for ailing Ginsburg to remain on Supreme Court

As Justice William Brennan aged, inevitable questions about his retirement grew more insistent. With his Irish wit still intact, he quipped about his intention to leave the court “feet first.” When news of Ruth Bader Ginsburg’s most recent cancer treatment garnered headlines, both her legions of fans and equally staunch opponents speculated on her plans to step down. Like Brennan, she indicated a determination to remain on the high court.

The Supreme Court’s modern history, from Franklin D. Roosevelt’s appointees onward, provides precedents for how justices have taken their leave.

Unexpected death

In the days before effective diagnosis and treatment of cardiovascular disease, a number of justices succumbed to it. Among FDR’s nine appointees, four died in service from coronaries or strokes: Frank Murphy, Wiley Rutledge, Robert Jackson and Harlan Stone. The latter was stricken while presiding over a public session of the court. Stone’s successor, Fred Vinson, died from a coronary thrombosis in 1953, prompting a snide aside from Justice Felix Frankfurter, “This is the first solid piece of evidence that … there is a God.” 

In recent years, only Antonin Scalia suffered a sudden death while on the court. His physician later revealed that the overweight justice had been diagnosed with heart and lung disease, high blood pressure, diabetes and sleep apnea.

Retirement in ill health

Frankfurter bowed out after a 1962 stroke and died three years later. Hugo Black and John Marshall Harlan II each capitulated to infirmities and stepped down from the bench in 1971. They died shortly thereafter. Determined to set the longevity record for service on the court, William Douglas did so by insisting that he stay even after a debilitating stroke forced him to use a wheelchair. Finally, he retired after 36 years as a member of the “priestly tribe.” 

Despite Brennan’s desire to die in his judicial robes, a 1990 stroke prompted his doctors to recommend retirement. He died in 1997, seven years after retirement, at age 91. One year after Brennan retired, Thurgood Marshall stepped down, owing to declining health, and died in 1993.

Death after prolonged illness

Only one member of the modern court has died while in service and suffering from a fatal diagnosis. Chief Justice William Rehnquist, an unrepentant smoker, received treatment for terminal thyroid cancer in 2004 but wouldn’t relinquish his seat in the court’s center chair. Chemotherapy enfeebled him, and he missed months of oral argument. He responded to reporters’ queries about when he might retire with characteristic crustiness, “That’s for me to know and you to find out.” He returned to the bench to announce decisions in June 2005, barely able to speak above a whisper. Over Labor Day weekend, he died.

Improvements in curative cancer treatments prolonged the careers of Justices Brennan (throat); Stevens, Blackmun, Powell (prostate); O’Connor (breast); and Ginsburg (colon, lung and pancreas). 

Resignation

Several justices’ exits from the court had nothing to do with physical ailments. James Byrnes left to take a position as an assistant to FDR. Charles Whittaker found judging excruciating, suffered nervous exhaustion, and returned to the corporate world. Arthur Goldberg loved being on the high bench but succumbed to the inimitable pressure of Lyndon Johnson to serve as the U.S. ambassador to the United Nations. 

Scandal hounded Abe Fortas from the court when news broke that he had taken retainers from a corrupt industrialist. To avoid conflict of interest, Tom Clark stepped down when his son became attorney general.

Retirement in good health

Good news for justices as they enter the golden years: their longevity rivals that of symphony orchestra conductors. Like all federal judges, they retire at full pay — $251,800 for associate justices and $263,300 for the chief — and most recent retirees have left in relatively good health, even if at advanced ages. 

Justice Stevens was a robust nonagenarian when he retired in 2010 and died at age 99 this past summer. David Souter never really embraced his public role on the court and happily left at age 69, as soon as a president (Obama) whose ideology he approved of was elected. Sandra Day O’Connor cherished her historic position as the first woman justice and a powerful swing vote, but she reluctantly left to care for her beloved husband, who suffered from Alzheimer’s. 

Potter Stewart, Lewis Powell, Byron White, Harry Blackmun and Anthony Kennedy, along with Chief Justice Earl Warren, all knew that they were slowing down as they aged, and they left the court to enjoy some years in retirement. Chief Justice Warren Burger officially retired in 1986 but enthusiastically led the Bicentennial Commission to celebrate the 200th anniversary of the Constitution.

Some observers have criticized Ginsburg for revealing her medical news only after completing treatment. Yet she has provided more health information than most of her predecessors on the court. Under the Constitution, justices serve for “good behavior” — or, in practice, life. They can be removed only by congressional impeachment and conviction for high crimes and misdemeanors. 

The Founders isolated justices from political vicissitudes, but time and illness eventually exact their toll. As President Kennedy expressed the truism so succinctly, “We are all mortal.”

NOTE: This post has been updated from the original to correct an error: It was the Bicentennial Commission for the U.S. Constitution that Chief Justice Warren Burger led.

Professor Barbara A. Perry is Presidential Studies director at the University of Virginia’s Miller Center and a former Supreme Court fellow. Follow her on Twitter @BarbaraPerryUVA.