David Atkinson
David Atkinson
Leaving the Bench: Supreme Court Justices at the End
ISBN: 0700609466
Leaving the Bench: Supreme Court Justices at the End
Life appointments make Supreme Court justices among the most powerful officials in government and allow even dysfunctional judges to stay on long after they should have departed. For that reason, when a justice leaves the bench is often as controversial as when he's appointed. This first comprehensive historical treatment of their deaths, resignations, and retirements explains when and why justices do step down. It considers the diverse circumstances under which they leave office and clarifies why they often are reluctant to, showing how factors like pensions, party loyalty, or personal pride come into play. It also relates physical ailments to mental faculties, offering examples of how a justice's disability sometimes affects Court decisions. Ultimately, Atkinson shows just how human these people are and enhances our understanding of how the Court conducts its business. He also suggests specific ways to improve the present situation, weighing the pros and cons of mandatory retirement and calling for reform in the delegation of duties to law clerks—who in recent years have dominated the actual writing of many justices' decisions. As the current Court ages, how long might we expect justices to remain on the bench? Because our next president will likely make several appointments, now is the time to consider what shape the Supreme Court will take in the next century. Offering a wealth of information never before collected, Leaving the Bench provides substantial grist for that debate and will serve as an unimpeachable reference on the Court.
—from the publisher's website
TRANSCRIPT
Leaving the Bench: Supreme Court Justices at the End
Program Air Date: August 22, 1999

BRIAN LAMB, HOST: David N. Atkinson, author of "Leaving the Bench: Supreme Court Justices at the End," what's this book about?
Mr. DAVID N. ATKINSON (Author, "Leaving the Bench: Supreme Court Justices at the End"): Well, it's a book, really, of endings as much as anything else. It's about how Supreme Court justices do leave the bench. I've tried to organize it in response to three questions.

The first question I had was, `Well, why do they leave? And then, `How do they leave? What are the circumstances?' And this takes a good deal of the book to explain the various circumstances of each of the justices who've been on the United States Supreme Court. And then finally, I ask the question, `When should they leave?'
LAMB: You know how many justices we've had in history?
Mr. ATKINSON: Well, we deal--I deal there with 100 of them.
LAMB: And why just 100?
Mr. ATKINSON: Well, because the last one to leave the court was Justice Harry Blackmun.
LAMB: And what are the reasons for justices leaving the court in history?
Mr. ATKINSON: Well, there are a number and I--I have a--I have a--a checklist in the first chapter of some of those reasons: ambition and dissatisfaction and...
LAMB: I've got it right in front of me. Read them? It'd be easier.
Mr. ATKINSON: Might just read those.
LAMB: The threat of impeachment, let's start with that one.
Mr. ATKINSON: Well, that's--that's a very real possibility. No one has been impeached in court history. James Wilson might well have been impeached had he not died. Abe Fortas probably came closer than anyone else as a result of the difficulties he encountered because he took money from an indicted financier. Louis Wolfson and John Mitchell and the Nixon administration pressed the point, and--and he did, indeed, resign before the matter went any--any further.
LAMB: Second reason you give for leaving the court--by the way, do they have to leave the court one--once they're appointed?
Mr. ATKINSON: No, they don't. Justice McKenna once asked that of William Howard Taft when Taft was chief justice. He wanted to know whether he could be forced from the bench, and William Howard Taft said, `No, of course not.' McKenna was a particularly difficult case, because he was mentally incompetent toward the end of his career, and his colleagues, and particularly Chief Justice Taft, had a difficult time getting him to leave the court.
LAMB: When was Mr. Taft chief justice?
Mr. ATKINSON: He was chief justice during the 1920s.
LAMB: After he was president.
Mr. ATKINSON: After he was president. He's the only person in American history to be both president and--and chief justice. He liked being chief justice more.
LAMB: You say that an attractive pension is another reason for leaving.
Mr. ATKINSON: And until the Retirement Act of 1937, pensions were not as they are now, and it's possible to retire, quite literally in most cases, at full pay. But early in court history, if one didn't qualify for a pension, there really was nothing available, and some persons had to have special acts of Congress passed in order to--in order to survive. They were dependent entirely on their salary. An example of that would be William Moody earlier in the century.
LAMB: Now say--take today. You're appointed to the Supreme Court and you're confirmed by the United States Senate and you want to retire--or--or let me ask it more openly. What kind of money guarantees do you have once you've been appointed to the Supreme Court?
Mr. ATKINSON: If you've--if you've reached the age of 70, and you have 10 years of experience in the ju--federal judiciary, then you're entitled to take senior status and you can retire quite literally at full pay.
LAMB: Do you have to do anything for that senior status? I mean, to--for the money?
Mr. ATKINSON: Well, not--not--not--not really. The--the lower court judges are obliged to do a certain amount of work. But for Supreme Court justices, unless they want to sit on courts of appeals, they--they don't have to do anything. The other possibility is if one's 65 and has had 15 years of experience. There's also a possibility--and this didn't occur until 1939--to take disability. There's been one justice in court history who left because of disability, and that was Charles Whittaker.
LAMB: What happens if you retire before 65 and have had seven years on the court? What's coming then?
Mr. ATKINSON: Well, you don't get a full pension.
LAMB: You get something.
Mr. ATKINSON: Yeah. You--you--you--you--you might get a half pension, I believe the arrangement would be.
LAMB: You say another reason for leaving the court is ambition.
Mr. ATKINSON: Ambition--ambition has been a reason from time to time. The very first chief justice, John Jay, left the court because he thought--correctly--that it was more important to be governor of New York. A more recent example would be Arthur Goldberg, who was put on the court by John Kennedy. Goldberg--Goldberg was somewhat restless on the court. He had been Labor secretary in Kennedy's Cabinet, and Lyndon Johnson wanted an opening on the court. He wanted an opening so he could put his good friend Abe Fortas on the court. And on Air Force One, while going to Adlai Stevenson's funeral, Johnson confronted Goldberg and discussed the matter of some position in government. A number of positions were suggested, according to--to Johnson's memoir, and he left in order to become the ambassador to the--the UN.

Now that was a fairly attractive position, because if Johnson suggested to him the possibility of a vice presidency at some future time, he would have had, as an example, Henry Cabot Lodge, who after all, was UN ambassador when Richard Nixon picked him to run in 1960 as vice president. But it was a major miscalculation on Goldberg's part, because if he thought that he was going to be a major player in American foreign policy through the UN, he was--he was mistaken, and he--he came to recognize that in later years. Johnson largely ignored him after he left the court. He got his opening, put Abe Fortas on the bench. And that's what Johnson wanted.
LAMB: How many Supreme Court justices have you known?
Mr. ATKINSON: Well, a number of them. I have done interviews in years past with--I can checklist some of them--John Marshall Harlan, Earl Warren, Stanley Reed, William O. Douglas, Hugo Black, Tom Clark, Charles Whittaker. I've had occasion to meet--when he visited the university where I teach, the University of Missouri-Kansas City--Harry Blackmun a few years ago, shortly before he retired. So a number of these people--a--and I found they--in years past, when I did interview work in the late '60s, they were very open.
LAMB: How long have you been teaching?
Mr. ATKINSON: I've been teaching 32 years.
LAMB: And how many different places?
Mr. ATKINSON: At one university, the University of Missouri-Kansas City, the political science department there. And I teach a course also in the school of law at UM-KC.
LAMB: Are you a lawyer?
Mr. ATKINSON: I am a lawyer.
LAMB: Where'd you get your law degree?
Mr. ATKINSON: University of Iowa. Went to the law school there, and did graduate work there at the University of Iowa as well.
LAMB: What was the genesis for this book?
Mr. ATKINSON: Well, I got interested in it really about 1975 when I watched the circumstances surrounding Justice Douglas' illness. And it struck me as an interesting topic about which relatively little work had been done. A lot of interest in how people get on the court, but not so much interest in how they leave, and that struck me as something that ought to be--ought to be addressed. And the more I researched the field and the more I collected materials over a period of some 20 years, the more fascinated I became with the topic.
LAMB: The fourth reason you give for leaving the court is dissatisfaction or weariness.
Mr. ATKINSON: Yes. And an example from the 19th century would be Benjamin Curtis, who--who disagreed with the Dred Scott decision and--prior to the Civil War--and quarreled with Roger Brook Taney. He was unhappy on the court. He indicated that he thought the salary was insufficient, but I think it fair to say that he was also dissatisfied.

There have been other people who were dissatisfied for a number of reasons. I think that Jimmy Byrnes, who left after a little more than a year, after Franklin Roosevelt had put him on the bench--he left to become the president's economic czar or assistant president, as some called him. He was impatient with the work on the court. One other person who isn't widely known would be John Clarke. Woodrow Wilson put him on the bench. He soon became, frankly, bored on the court. Wilson put three people on the bench. He also put Louis Brandeis on the bench; and Clarke was somewhat disturbed when he found himself disagreeing on some matters with Brandeis. But he disagreed pretty much all of the time with James McReynolds. McReynolds was a curmudgeon and a very difficult man in every way, a very prejudiced man, and he had been the attorney general with Wilson. Clarke found him very disagreeable. He was so pleased to get off the bench that William Howard Taft asked him to tone down his letter of resignation so it didn't sound so enthusiastic.
LAMB: You point out that there's a tradition in the court to go to the funeral of former members, or even members, that all the ju--do all the justices go?
Mr. ATKINSON: They have in recent years done that. Now in past decades that wasn't always the case, but--and I'm reminded of the fact that William O. Douglas did not attend the final ceremonies for Felix Frankfurter, their disagreement had grown so intense inside the court.
LAMB: But you also point out that Mr. McReynolds, or Justice McReynolds, from Kentucky--no one...
Mr. ATKINSON: No one liked him.
LAMB: No one came to his funeral.
Mr. ATKINSON: No one came to his funeral.
LAMB: You said they had more justices go to his dog's funeral, or--or--what--what...
Mr. ATKINSON: Well, no, it was his--his...
LAMB: Oh, his aide.
Mr. ATKINSON: ...messenger.
LAMB: I'm sorry.
Mr. ATKINSON: Yes.
LAMB: Yeah. …
Mr. ATKINSON: ...who was an African-American. Th--the justice was a notoriously bigoted person. And the only person that I have ever found who liked McReynolds, in his own way, was Dean Acheson. Acheson wrote a memoir once in which he indicated that he was able to get along with McReynolds, primarily by keeping him off topics where he was so disagreeable.
LAMB: Well, you know, it's of--it's often come up in books I've read for this program that Mc--McReynolds--Justice McReynolds was an anti-Semite.
Mr. ATKINSON: He was.
LAMB: And a--and a bigot and--racial and all. What evidence do you have of that?
Mr. ATKINSON: Well, his comments and his behavior. He wouldn't shake hands, for example, with Justices Brandeis or Cardozo. The justices shake hands before they--before they--they have their conference. He...
LAMB: Why wouldn't he shake hands with them?
Mr. ATKINSON: Well, he was anti-Semitic, and he wouldn't sign letters of--of--resignation letters that--or letters of appreciation that colleagues signed when those justices left. McReynolds shocked everybody, though, by leaving his fortune to the children and orphans of Washington, DC.
LAMB: You say he had an African-American aide, and you--and more justices went to that funeral than went to his.
Mr. ATKINSON: That's true. That's true.
LAMB: None went. Where was he buried, by the way?
Mr. ATKINSON: McReynolds? I believe he's buried in--in Kentucky. I--I have a list of all the burial sites at the end of the book.
LAMB: Is that hard to keep track of in your own mind?
Mr. ATKINSON: It is. It is. It is. No one has been buried west of Boulder, Colorado, though.
LAMB: We'll get back to the burial thing. Let me go through this list of reasons for leaving that you have here. Poor health or declining physical energy.
Mr. ATKINSON: Well, that includes an--a lot of people. That would include a lot of people and...
LAMB: Well, let me just ask you this right there. When--when was the last time somebody died on the court?
Mr. ATKINSON: The last who person who died on the court was Robert Jackson in 1954. Now Fred Vinson died--Jackson died, I may say, coming into the court one morning. He had previously experienced a heart attack. His doctor had told him to slow down, but he refused to do that; continued to work at full tilt, and experienced a second heart attack.

Fred Vincent also died on the court in 1953. Vincent had come back from a bar association meeting and he was stricken with a massive heart attack early in the morning in his apartment and--and did not survive long at all. The last picture I was able to find of the chair, which is the tradition of the court--when someone dies in office, they--they cover the chair with crepe. And the picture I include in the book is the picture of Benjamin Cardozo's chair. Justice Cardozo also died in office.
LAMB: Who appointed him?
Mr. ATKINSON: Cardozo was appointed by Herbert Hoover. And Herbert Hoover later said that it was the most important thing he did for the American people, to appoint Benjamin Cardozo, who incidentally was a Democrat.
LAMB: And why was he the most important thing?
Mr. ATKINSON: Because of his distinguished record, and he, of course, was a very famous jurist at the time of his appointment to succeed Justice Holmes in 1932.
LAMB: Poor health or declining physical energy--again, there's one vivid moment in your book that I wanted to ask you about. You quote somebody else saying this, but you tell the story about William O. Douglas...
Mr. ATKINSON: Yes.
LAMB: And that things got so bad with him that his secretary used to follow him in a wheelchair being pushed down with a can of Lysol. Explain that.
Mr. ATKINSON: Well, that's true. He w--he became incontinent, following a stroke, and the justice was--was very ill following that stroke in the Bahamas on New Year's in 1975 and he stayed on the court much too long. He finally did leave in the fall, but it was not easy to get him to step aside, even though he was obviously impaired. A number of things happened. The court decided to leave him out, really, of--of close decisions, 5-4 decisions, those kinds of cases that might control the future of the country for a very long time. They simply omitted him.

Now Justice White at the time protested. We now have the letter; it's since been published. It was not known at the time. Byron White objected to that. He felt that it was a way in which the court had effectively removed Douglas from the decision-making process, and White's position was the only way you can legitimately do that is to impeach a justice and...
LAMB: Who was chief justice?
Mr. ATKINSON: A--at the--at the time, Warren Burger was.
LAMB: And--and you--you pen a scenario around this story that it takes four of the nine justices to get a case heard.
Mr. ATKINSON: Yes, grand officiary.
LAMB: And what would they do if Justice Douglas was one of the four?
Mr. ATKINSON: Well, they left him out. In other words, you had to have four votes besides his vote, and that was another way in which he was--he was ignored by the conference, by the court.
LAMB: What if it was a 5-4 decision, and he was one of the five?
Mr. ATKINSON: Well, they would ignore his vote then and--and they would carry it over. They didn't want--they didn't want decisions turning on Douglas' vote because he was so impaired. Now there's a bit of history here, because in the 1950s when Douglas was in the Southwest, in Arizona, and a horse rolled over on him and he was--he was injured, he used the time he was in the hospital to write his--one of his first memoirs, "Of Men and Mountains." But during those year--during those months, while he was incapacitated, he cast his vote through Hugo Black. That--that--that was very troublesome to Felix Frankfurter in those years.
LAMB: Is that a lot--is that legal?
Mr. ATKINSON: Well, he did it. And he tried to do it again through Brennan, but it was not permitted this time.
LAMB: Is there a way to get somebody off the court if they are disabled and physically can't do the job?
Mr. ATKINSON: Well, there--there really--there really isn't. Peer group pressure has become increasingly important. This was a problem that concerned Samuel Miller in the 19th century. Miller was one of the major justices in the latter half of the 19th century. He was a physician, actually, a trained medical doctor, and he felt that some sort of constitutional amendment really--really should be re--should--should be passed, so that persons could be removed for incapacity. He even listed insufferable temper as a--as a--as a reason that might--might justify removal. But nothing ever came of that, so we have nothing that's equivalent to the 25th Amendment, which could be invoked to remove an American president.
LAMB: Another thing of your eight--you say is--that people leave for mental decline or disability. How often has that happened?
Mr. ATKINSON: Well, we've had--we--we've had in court history several cases like that. And Justice McKenna probably is as good an example as--as one can think of in the present century. It was very difficult to get him to leave. He was reluctant to leave. William Howard Taft had a very difficult time persuading him to leave. Now Charles Whittaker had difficulty, too. He had previously suffered from depression. This was not widely known--it wasn't known at all. It was the sort of thing that would disqualify someone at the outset at the present time, but people didn't talk that much about health then and--and he--he left the court in broken--in broken health. In the 19th century, one of the grimmest cases involved Robert Grier.
LAMB: Well, that's--before you do that, that's the seventh point here is...
Mr. ATKINSON: Yes.
LAMB: ...that--the family pressure. And you suggest it's just the opposite, in his case.
Mr. ATKINSON: Well, in--it...
LAMB: Rather than leave, they wanted him to stay.
Mr. ATKINSON: Well, that--in Grier's case, there didn't seem to be much--much--much help from the family, nor was there much help in the McKenna case, either. Justice Douglas' family did indeed encourage him to leave. But--they did what they could. But family is not always successful. But yes, you're right. Very often the family is reluctant to have a justice leave because they lose social position. An example of that would be in the 19th century, Stephen J. Field. Field, too, in the latter half of the 19th century was a major jurist, a very forceful personality. He stayed on the bench much too long, and his younger wife was in no--no--no hurry to see her husband leave. It would have meant the loss of--of social status and position.
LAMB: I've got--from your book about Justice Grier...
Mr. ATKINSON: Yes.
LAMB: Do you remember who appointed him?
Mr. ATKINSON: Oh, G--G--Grier was--I--I don't recall offhand who--who put Grier on the bench.
LAMB: I'll try to go back and find it. Let me just read you--this is George Harding described by--well, it's complicated, but you'll remember this: `...called on Judge Grier, saw Mrs. Beck,' a daughter, I guess...
Mr. ATKINSON: Yes.
LAMB: ...of Judge Grier's, `and him for an hour. They are moving on to Capitol Hill. He feels his oats and doesn't talk of resigning. I sounded him, but he wouldn't respond to my touch. I saw Swayne, Nelson and Davis'--are those all justices?
Mr. ATKINSON: Yes.
LAMB: `They are greatly exercised as--at his not resigning. They declared that they were going to crowd him about December 1st. He sleeps on the bench, drops his head down and looks very badly. Congress will also crowd him if he don't resign.'
Mr. ATKINSON: You know, in 1866, four years before Salmon Chase, the chief justice, finally, along with other members of the court, managed to secure a--a resignation--four years before that happened, Grier suggested to Chase that he be given a room in the Capitol that he could move into so he could avoid walking any steps--up any steps--and there was no response that we know of from Chase. Truly amazing and astonishing proposal, that he just move into the Capitol and make that his residence.
LAMB: Well, this other--it is--it--this is more from this letter--I guess it was written: `It is supposed that Mrs. Smith, Grier's other daughter, and Mrs. Beck'--those are the two daughters...
Mr. ATKINSON: Yes.
LAMB: `...support Grier in his wish to remain on the bench with the view to maintain their social status...'
Mr. ATKINSON: Yes.
LAMB: `...another winter in Washington.' How big a deal was that...
Mr. ATKINSON: Well...
LAMB: ...for both wives and kids?
Mr. ATKINSON: ...in--in many cases it was important to them. And in--in Grier's case, it appears to have been one of those reasons that discouraged resignation. Peer pressure really was what eventually secured his resignation.
LAMB: Finally, your last reason for a justice leaving the bench: a voluntary choice, even though they remain capable of doing their work.
Mr. ATKINSON: And a number of people have done that. William Strong, in the last century, left and encouraged some of his other colleagues to leave. John Clarke, who I mentioned earlier, left at age 65. He was dissatisfied, but he also voluntarily left. He had made a private fortune previously, and he felt that 65 was an appropriate time to leave. There was a justice earlier in the century, Henry Billings Brown, who spent a number of years on the bench even though he could scarcely see. He couldn't read, he had to be read to. A friend of his, when he was appointed, suggested that--that--he suggested to a friend, I should say, that he should leave when he turned 70. And on his 70th birthday, his friend appeared in Washington and reminded him of his promise years ago to leave when he--when he turned 70. The justice took it all in good humor and laughed, and--and not long thereafter, did leave.
LAMB: Why did you put Justice Thurgood Marshall on the cover?
Mr. ATKINSON: Well, that was a decision by the--the publishers. They--they--they thought that that was a--an interesting, even captivating picture.
LAMB: Where'd they get the picture?
Mr. ATKINSON: Th--that came from the--the Supreme Court.
LAMB: And where is it, the picture itself?
Mr. ATKINSON: Well, the--the picture is of Marshall in his chambers.
LAMB: And what's it signify when you look at it?
Mr. ATKINSON: Well, it shows an elderly justice. The picture is not one that suggests decrepitude, but a degree of exhaustion, and it is a picture of Marshall toward the end of his career.
LAMB: What was he like toward the end of his career?
Mr. ATKINSON: Marshall was another justice who overstayed. He had deteriorated markedly toward the end of his career, and the law clerks had assumed an increased role by the time he left the bench.
LAMB: Well, why would--well, let me just ask you what's in the book and why do you think someone would--what kind of people would buy a book like this?
Mr. ATKINSON: Well, I--I--I hope that the stories are sufficiently lively to interest a--a wide audience, people interested in the Supreme Court, people interested in American government and politics. These are people who, after all, do--do exercise a good deal of authority and power in our government. And so my--my hope is that--that the book will appeal to more than just political scientists and lawyers who are specialists in the Supreme Court.
LAMB: It's published by the University of Kansas Press. Who convinced--wha--who--did you convince them or they convince you to do the book?
Mr. ATKINSON: Well, I--I--I took the manuscript to them, and they--they proceeded to publish it, and I was very pleased with their work.
LAMB: How many copies of a book like this do they print?
Mr. ATKINSON: You know, I'm not sure how many they did print, but they usually print several thousand and...
LAMB: What's it cost? Do you know? It doesn't have a price in it.
Mr. ATKINSON: It--it's under $30. I believe it's $29. The--the hope was to keep the book--even though it does have quite a few photographs--keep the book under $30, because if one's able to do that, why, the audience is larger.
LAMB: And you have in the back a number of things, including all their burial places.
Mr. ATKINSON: Yes.
LAMB: Can you go to all their burial places?
Mr. ATKINSON: I didn't go to all of those, but I made a good many telephone calls to--to burial sites and checked and confirmed records, and I believe that they're all correctly located at this time.
LAMB: How main--how well maintained are they, do you know? Have you been to any of them?
Mr. ATKINSON: I--I've--I've been to a few of them, but--but not very many. Mo--most of them are--are in fairly ordinary state. Of course, the 19th century monuments show a good deal of wear and tear because those that were made of marble, like most marble monuments, do deteriorate. There's a--there's a site on the Internet, incidentally, where you can see a good many of these prominent tombstones.
LAMB: You say in the back that nine of the justices are buried at Arlington National Cemetery.
Mr. ATKINSON: Yes.
LAMB: Four at Rock Creek here in Washington...
Mr. ATKINSON: Mm-hmm.
LAMB: ...and three at Oak Hill here in Washington. It totals up that if you go through all of it--of the 100 or so you have here--that over a quarter of them, or about a quarter of them, are buried here in the Washington area.
Mr. ATKINSON: Here in Washington, yes. Quite a few are here in the Washington--the Washington area.
LAMB: Why is Louis Brandeis buried at the University of Louisville--his ashes?
Mr. ATKINSON: That--that apparently was his wish. Louisville was where the--the family settled after they came from Germany. That was where the justice's roots were, and so it was his wish that he be buried there.
LAMB: There's seven buried in Kentucky.
Mr. ATKINSON: Quite a few. I hadn't realized--I hadn't--I hadn't made that count.
LAMB: Well, the--the--when it comes to the justices--something that you don't get with presidents--I think you'd say five of them have been cremated.
Mr. ATKINSON: That's--that--that's true. The--a number of justices were cremated. And, I believe, Justice Fortas was the only one who was not--was not buried in some location.
LAMB: Now when you read the book, it's story after story after story of the last years of a justice and their death. Did you ever get depressed?
Mr. ATKINSON: Well, it is depressing material, but it depends on the story to some degree. Some of the justices met their end with a lot of fortitude. Some others presented truly depressing scenarios, but--but not everybody, not everybody.
LAMB: Who was uplifting for you?
Mr. ATKINSON: Well, I thought John Marshall Harlan met his end in a--in a--in a--in a very stoic...
LAMB: Which--which John Marshall?
Mr. ATKINSON: The second John Marshall Harlan. He was very ill from spinal cancer. He was--he was--he had no complaints. When people came to visit him, he apparently, as was his wont, inquired about them. He didn't--he didn't fix upon his own difficulties and--and pains. So some of the justices have--have--have exercised a good deal of fortitude under difficult circumstances.
LAMB: Do they lie in state anywhere auto--au--automatically?
Mr. ATKINSON: Well, they call it lying in repose, I'm told, at the court, because to lie in state requires a government act. So in recent years the justices have been--have been laid in repose in the Great Hall of the Supreme Court. And that was true with Earl Warren. And the first associate so treated was Thurgood Marshall, and since then, Harry Blackmun, William Brennan have all laid in repose.
LAMB: This is in your chapter on Henry Baldwin, 1830 to 1844, when he was a justice. `He sits in his room for three or four hours in the dark, jumps up and runs down into the judge's consultation room in his stocking feet and remains in that condition while there deliberating.'
Mr. ATKINSON: That was one of Andrew Jackson's mistakes. He was not well. It has been more recently suggested that it was obsessive-compulsive syndrome from which he suffered, but very, very difficult person for his colleagues to contend with.
LAMB: Joseph Story, the youngest justice in history at 32 when he went on the court. You quote here you--him saying this. He was the justice between 1811 and 1845. You--"In every way which I could look into the future, I can see little or no ground of hope for our country. We are rapidly on the decline. Corruption and provocacy, demagogueism and recklessness characterize the times, and I, for one, am unable to see where the thing is to end."
Mr. ATKINSON: Oh, Story was an extraordinary pessimist. Everything was awful, and that's the way he was. He had a very low opinion of the appointment of Roger Brooke Taney, too, but after a while he, to some degree, changed his mind and spoke highly of Taney. But he was--he was given to pessimistic statements about the future of the country.
LAMB: One little note you have in the John Campbell scenario or the--the bio on him is that the South never created a Supreme Court wh--during the Civil War. Why was that?
Mr. ATKINSON: Well, I think they were afraid of Campbell. He was the one person who left the Supreme Court in order to the join the Confederacy. However, he waited so long that he wasn't received with open arms in the South either, and his enemies in the South were determined that he not get any position of real responsibility, and he wasn't given any important position during the Civil War. However, afterwards, when there was talk about him rejoining the Supreme Court, Samuel Miller and others were very distressed by that talk. Actually, Campbell became a very successful lawyer after the Civil War, and he litigated a number of cases before the Supreme Court on behalf of captains of industry. It was said in those years if a large corporation had a difficulty, leave it to God and Mr. Campbell.
LAMB: How many justices were from the South that stayed on the court during the Civil War and didn't go back home and still served as justices?
Mr. ATKINSON: Well, there were a number of persons, and the most prominent was--was--was Roger Brooke Taney himself. And he stayed on the bench. And...
LAMB: Chief justice?
Mr. ATKINSON: Yes, the chief justice. Stayed on the bench. And no one else left. No one else left at all.
LAMB: And what was so controversial about justice--Chief Justice Taney?
Mr. ATKINSON: Well, I--I think the--the most unfortunate part of the legacy, of course, was that he wrote the unfortunate opinion in the Dred Scott decision that denied that African-Americans had rights as citizens. It was a provocative decision, and it broke the--the court apart. There were dissents, Curtis and--and Justice McLean and others. It--it was a very divisive opinion and an unfortunate opinion. It really wasn't until the 1930s when a more measured evaluation of Taney became possible, the biography of--of him written at that time by the late Carl Ben Swisher.
LAMB: The justice who went to prison.
Mr. ATKINSON: Well, it--it--it--James Wi--Wilson was an extraordinary person. He was perhaps the best mind of the--of the early Washington appointees, one of the founding fathers. But he had a weakness, and his weakness was he could not resist land speculation, and he got in over his head. And when one spent more money than one had and compiled massive debts, as he did--you know, in those years there was no bankruptcy law. You--you--one went to prison, debtors' prison. And so his--his debtors--his debtors were on his heels. He was--he was, in fact, imprisoned. He got out.

And at the end of his life he was on the run with his much-younger wife. She was 32 years younger than he was, and he had started a second family. They had a small child in tow, and the justice was--at the end of his tether, he had contracted malaria. He had s--he suffered a stroke. And his debtor--his--his creditors were after him, and he was run to ground in a--in a--in a tavern. And it was in the tavern where he died in a delirium. A very sad case.
LAMB: You have two pictures of William Howard Taft in here.
Mr. ATKINSON: Yes.
LAMB: By the way, on the photograph side of it, were they hard to get?
Mr. ATKINSON: No, no. The--the photographs were available of Taft, a sort of before and after while he was president. And--and he...
LAMB: Now the one on the--on the--on the screen right now is William Howard Taft at--What?--300 and something pounds.
Mr. ATKINSON: Three hundred and twenty-six pounds. And he--he--he could diet down to 250 upon occasion. But the second picture is Taft when he returns from Asheville, North Carolina. He went to North Carolina hoping to be cured. He--Taft was a hypochondriac, and at his half-brother's funeral he began to--the funeral depressed him a good deal, and thereafter his health went into decline. He had a heart condition, high blood pressure. He didn't smoke or drink, but he did eat too much. And he did not recover. He was not recovering in North Carolina, and so he wanted to return to Washington.

Taft was insistent that he die in Washington. He was able to get back in time. He did die in Washington on May 8th, 1930, which was the very day Oliver Wendell Holmes, at the Supreme Court, was celebrating his 89th birthday. And May 8th, 1930, was also the day that Taft's good friend and a man he had appointed, Edward Terry Sanford, died.

Sanford had an extraordinary experience that day. He was on his way to the Capitol, as usual, but he went first to his dentist's office. He wanted to have a tooth extracted. And they gave him nitrous oxide, laughing gas as it's sometimes called, still used in dentists' offices. But they must have given him too much. The dosage must not have been quite right because he developed heart irregularities, and he did not survive the day. He was a very heavy smoker, small cigars and cigarettes that he chain-smoked. He appeared to be in good health, but he clearly was not. And the experience in the dental chair was simply too much for him.
LAMB: Who--who died the most difficult death?
Mr. ATKINSON: Oh, it--there's so many people who--a number of people had--had--had difficult deaths. William O. Douglas did suffer a good deal because, after he experienced his stroke, the stroke--the--there was no way to alleviate the pain. He tried everything--he tried acupuncture--but nothing seemed to work. And unlike some stroke victims, he--he could not avoid the pain.

LAMB: You point out in your book that, `Upon entering the hospital,' I'm reading, `Black,' meaning Hugo Black, `had insisted that his son destroy his court papers.'
Mr. ATKINSON: Yes.
LAMB: What's the circumstance there?
Mr. ATKINSON: Well, Justice Black was unhappy with the way in which some writers had used court papers of other people, most particularly Harold Burton. He was unhappy with regard to the way in which his role in the desegregation case had been reported. Justice Black was strongly opposed to segregation, and anything that suggested otherwise he was very unhappy about. He simply asked that those papers be destroyed. A lot of Black papers, nonetheless, are available because all of the correspondence he--he sent to other people still exist.

But I might add that in response to that question of yours about the most difficult of deaths, it may well be that William Moody died about as difficult death as anybody. I--I don't think very many people would necessarily know who Moody is now, but in his day he was a very prominent individual. He was a close friend of Theodore Roosevelt's. He was the attorney general of the United States. Roosevelt put him on the Supreme Court. And after a very short time, a couple of years, he--he became paralyzed. More recent thinking has concluded that it probably was Lou Gehrig's disease, although there was--there was no satisfactory diagnosis at the time. People talked about arthritis and rheumatism and so on. None of it seemed to be entirely satisfactory as a diagnosis.
LAMB: One little item, when you're talking about Felix Frankfurter, who was on the court 1939 to 1962...
Mr. ATKINSON: Yes.
LAMB: What was he? A former Harvard professor.
Mr. ATKINSON: He was.
LAMB: This is just a little note. It says, `Following the stroke, his voice began to reacquire the Viennese accents of his youth.'
Mr. ATKINSON: Yes, and it irritated him a good deal. R--Frankfurter was a great believer in assimilation, and he had discarded the--the German accent, the Austrian accent of--of his childhood. And after the stroke, that began to reassert itself. He did not go back on the bench. He--he was--he was partially paralyzed as a result of his stroke, had difficulty with speech. And, you know, Justice Frankfurter was a great asker of questions from the bench. That was something he was rather famous for.
LAMB: What was the rift between him and William O. Douglas?
Mr. ATKINSON: Well, they had been good friends in their earlier years as professors, when Douglas had been a law professor at Yale and--and Frankfurter at Harvard. But when they got to the Supreme Court, they began to pull apart, and they--they had--they had many differences. And those differences--part of it was a matter of not only substance--they disagreed on many substantive matters--but their style was--tended to be very different. I once got a letter from Justice Douglas, in which he--in response to a question I had put to him about that relationship, he made the point that, in his opinion, Frankfurter's view of the conference was not of an opportunity to proselytize positions rather than to form consensus.

And, clearly, they clashed at--at conference, and at one point Douglas suggested to Earl Warren that he, Douglas, perhaps shouldn't attend conference anymore. He said he was afraid he was going to make Justice Frankfurter ill because Justice Frankfurter got so excited at conference. It is true that, as time went by, they--they simply could not get along on a personal level.
LAMB: Currently there are nine members of the Supreme Court. Have there always been that many?
Mr. ATKINSON: W--it has varied from time to time. During the Civil War it was as high as--as 10, as I recall.
LAMB: Has it ever been lower than nine?
Mr. ATKINSON: It has. It has sometimes gone down to a smaller number, seven.
LAMB: There have been 16 chief justices of the court. How many of those were f--formerly associate justices?
Mr. ATKINSON: Well, Edward Douglass White was moved to the chief justiceship by President Taft. And--and Harlan Stone--Harlan Fiske Stone, who was...
LAMB: One or two?
Mr. ATKINSON: Moved--he was two. And then--then William Rehnquist, that would be three. I believe that's it.
LAMB: What about--what--let's see, there was another one that came to mind. I want to ask you about Chief Justice Hughes who was on--was an associate justice, left the court...
Mr. ATKINSON: Yes.
LAMB: ...and then came back as chief justice. How did that work?
Mr. ATKINSON: Well, he left the court in order to run for the presidency against Woodrow Wilson in 1916, but then Herbert Hoover put him back on the court as--as chief justice. He presided during the 1930s, following Taft. And he had been on Wall Street at the time of the appointment; previously had been secretary of state, Coolidge--Harding. And he--it may have surprised President Hoover that he accepted the appointment because it meant that his son's career in the Department of Justice was ended. But the old gentleman accepted the chief justiceship immediately.
LAMB: You point out that Stanley Reed, who was a justice--was alive until just a few years ago--was 95 when he died, but he was the longest justice to have a private life after he left the court for 23 years. Why did he leave the court?
Mr. ATKINSON: Well, he left the court in good health. He just decided it had been long enough, and he did some work thereafter on the courts of appeals--Court of Appeal for the District of Columbia, until his memory began to become increasingly uncertain, which--which was a problem for him later in life.
LAMB: Sherman Minton. You say that, `But what influenced him most was his fear that his mental powers were failing during the 1955 term.'
Mr. ATKINSON: Well, Minton--Minton did feel that way. One of his law clerks thought the justice had overreacted. Minton was a, as his son said--and his son was a doctor--a cardiac case, really, while he was on the court. He was--he had suffered a heart attack, a serious heart attack, earlier. And when he went on the court, he did not have the energy that had made him such a force earlier in the United States Senate. He'd become the Senate whip in just one term and had moved forward in the Senate more rapidly than anyone in this century other than Lyndon Johnson.

But Minton--Minton was--was not--was not a well man during his years on the Supreme Court. He sometimes is listed as a failure by those who have studied the court. I think that's a mistake. I don't believe that he was a failure. His clerks--one clerk remembered him as still smart and sharp. He--he did his work. Things were on time. But he was not the same person that he was. Still, the picture in the book, I think, is representative of him in many ways. He's an ebullient figure, strong personality, and he was the one person, while he was on the court, who was really liked by all of the other people. Everybody felt comfortable with him. He was very personable. Minton was an easy person to talk to.
LAMB: Who served as chief justice the longest?
Mr. ATKINSON: Oh, the--the longest w--would be Taney, I think.
LAMB: How about John Marshall?
Mr. ATKINSON: John Marshall. John Marshall.
LAMB: What was--what was the difference there?
Mr. ATKINSON: Marshall--very close. They both had long tenures. I believe it would be Marshall.
LAMB: Who has served on the court the longest?
Mr. ATKINSON: William O. Douglas had the longest tenure.
LAMB: And is there--can you give us an--kind of an average of how long someone serves on the court as an average?
Mr. ATKINSON: I don't know what the overall average would be. The--some tenures have been very short, and some--some--some--many of them in the 20-some years. I've not seen--I've not seen an average overall. I do have, for each of the periods that I examine in the book, the average age people were when they left at any given time.
LAMB: You talk about one of the current sitting justices, the chief justice, William Rehnquist, who was an au--associate justice. And you talk about his lower back pain and the drug that he took. Was that controversial?
Mr. ATKINSON: Well, it was controversial in the sense that reporters had some difficulty finding out what the situation was all about, and that perhaps relates to one of my suggestions for reform. I do believe that the justices, I do believe the court needs to be more forthcoming about their--their medical histories, more--more forthcoming about medical problems that may exist on the court.
LAMB: But go back over the--the ground rules. You--you're appointed to the court, approved by the Senate. How long can you stay?
Mr. ATKINSON: Well, you can stay--stay on the court as long as--as long as you--as long as you wish.
LAMB: When can you opt for a senior status?
Mr. ATKINSON: Well, if one meets the requirements of the Retirement Act, and one is age 70--see, there are two reasons--two--two--two reasons that are sufficient for retirement: age and disability. So if one is age 70, with 10 years of experience, or age 65 with 15 years of experience, or if the chief justice agrees there is evidence of disability--and only one person has ever left the court for reasons of disability, and that was Charles Whittaker.
LAMB: Y--well, you point out, though, that Benjamin Curtis left the court and then tried 54 cases before the court?
Mr. ATKINSON: Yes. He was a very active litigator after he left the court.
LAMB: Is that--I assume it's allowed, but is--is that...
Mr. ATKINSON: Oh, yes.
LAMB: ...does that give him an--a leg up on the rest of them 'cause he actually sat on the court?
Mr. ATKINSON: Well--well, it may have. He was very successful as a--as a lawyer, but after one retires from the court, if one doesn't--if--if one resigns rather than retires, one can go back into the practice of law if one chooses. For example, Justice Whittaker first--Justice Whittaker first retired, then he resigned in order to go to work for General Motors.
LAMB: You have some suggestions on what you think needs to be changed, and I--you make a--a statement in here that you think that there's--there's some problems. And...
Mr. ATKINSON: Well, I think there are some reforms that would improve the--the status quo.
LAMB: Let me just add, though...
Mr. ATKINSON: Yes.
LAMB: ...you write, `I am pessimistic about the court's future.'
Mr. ATKINSON: I--I--I am, although I--I don't advocate in the book that--that we pass a constitutional amendment requiring that justices leave at a certain age. Lewis Powell, when he left the court, suggested it might be a good idea to require justices to leave at age 75. And from time to time those suggestions have been made. In the early 1950s, Owen Roberts, who left the court in a state of considerable dissatisfaction, very unhappy with some other people on the bench when he left, he gave testimony before the Senate to the effect that he thought there should be a constitutional amendment that required justices to leave. He didn't care what the--wh--what age might be selected, 70, 75, whatever Congress thought best.

But he thought it should be done because it would discourage people clinging to power long after they had lost the ability to perform at their peak, at their very best. And, secondly, he thought byrequiring these retirements, it would permit presidents to make appointments. Jimmy Carter, for example, didn't even have an opportunity to make an appointment. Franklin Roosevelt made no appointments during his first term. And Justice Roberts thought that this would--this would encourage turnover and make it less likely.
LAMB: Other than George Washington, who had to create the court, who else had the most appointments?
Mr. ATKINSON: Well, Franklin Roosevelt had a good many appointments because there was such a--such a considerable change.
LAMB: Were there many presidents that didn't have any?
Mr. ATKINSON: Well, some didn't. Jimmy Carter is the one who comes to mind.
LAMB: In your own personal background, where's your hometown?
Mr. ATKINSON: I grew up in Red Oak, Iowa, which is in southwestern Iowa.
LAMB: Where'd you go to undergrad?
Mr. ATKINSON: I went to the University of Iowa as an undergraduate, went to law school at Iowa as well and--and then--then did doctoral work at the University of Iowa--political science department.
LAMB: What's your doctorate in?
Mr. ATKINSON: In political science.
LAMB: At what time did you then go to law school?
Mr. ATKINSON: I went to law school before I went to graduate school, and having gone to law school, I--I was primarily interested in constitutional matters and--and so continued on in graduate school and enjoyed that work.
LAMB: What book for you is this?
Mr. ATKINSON: This is my first book. I've done a certain amount of law review writing articles, but this is my first book on--on--on a matter.
LAMB: Where would you say you got most of your information?
Mr. ATKINSON: Well, from a number of sources. Biographies, I think primarily. Newspapers--used--used newspaper sources when available, checked all of those, diaries, memoirs. So many sources can be--can be looked to for this sort of materials.
LAMB: After spending all this time thinking and writing about the court, what do you think of it?
Mr. ATKINSON: Well, I--I--the court is a fascinating institution, and I spend most of my time studying the court. The--but I--I--I think--I think that some reforms would improve the status quo. I--I think there is, at present, too much reliance on the--on the law clerks, for example.
LAMB: Wh--when did they first get law clerks?
Mr. ATKINSON: Horace Gray, early in the century, retained someone who...
LAMB: This century.
Mr. ATKINSON: Yes--and--and these persons--one person as a--as a clerk. And the number of people who have these positions has grown in recent years.
LAMB: How many clerks do the justices have now?
Mr. ATKINSON: They've got four, and the chief justice more.
LAMB: A--was there--in--and there--you know--I mean, I read it in your book--there's a time when they actually had the court in the Capitol...
Mr. ATKINSON: Yes.
LAMB: ...and they worked in the Capitol. Did they have any office?
Mr. ATKINSON: Well, they had--no, they had--they had a room where they met, in addition to the courtroom, and it was a very unhealthy place, particularly before 1860. And I found comments by people who were familiar with the situation in those years--there was no proper ventilation. The rooms were--were either too cold or too hot, filled with smoke--very disagreeable and very unhealthy.
LAMB: David Atkinson wrote this book, and it's all about the end of the lives of the Supreme Court justices. "Leaving the Bench" is its title, and it's the University of Kansas Press. Thank you very much for joining us.
Mr. ATKINSON: Thank you for asking me.


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