David N. Atkinson.
Leaving the Bench: Supreme Court Justices at the End.
Lawrence: University Press of Kansas, 1999. xiii + 248 pp. Illustrations,
Appendixes, Notes, Selected Bibliography, Index. $29.95 (cloth), ISBN
0-7006-1058-8 ISBN 0-7006-0946-6; $16.95 (paper), ISBN .
Henry J. Abraham.
Justices, Presidents, and Senators: A History of the U.S. Supreme Court
Appointments from Washington to Clinton.
New and revised edition. Lanham, MD: Rowman and Littlefield, 1999. xiii +
429 pp. Illustrations, Notes, Appendixes, Bibliography, Photo
Acknowledgments, Index of Cases, Index of Names, About the Author. $75.00
(cloth), ISBN 0-8476-9605-7 .
R. B. Bernstein , New York Law School.
As of this writing, the U.S. Supreme Court has had the same
membership for six years -- the longest such period in the Court's history
in over a century. Observers of the Court have noted, based on the ages of
the older Justices, the likelihood that the next five years will witness
one, two, or even three vacancies on the Court. The closely-divided nature
of the Court combines with the approach of a Presidential election and a
national contest for control of the Senate to give urgency to issues of
the Court's composition.
Two recent books deserve to be read together as valuable
resources for anyone contemplating how Justices come to the Court and how
they go. Of these books, Justices, Presidents, and Senators tells
the more familiar story. This latest edition of a book that first appeared
in 1974 has become an indispensable reference for historians of the Court,
and retains its character as a lively and useful examination of Supreme
Court appointments and the evolution of the appointments process over
time. Henry J. Abraham, now James Hart Professor of Government and Foreign
Affairs, Emeritus, at the
University of Virginia,
has thoroughly revised and overhauled his book, the last edition of which
appeared in 1992. His modification of the title is apt and valuable;
indeed, Senators have played a large, and increasingly important, role in
staffing the High Court. At the same time, his dropping of the adjective
"political" from the book's title is unfortunate, as one of the enduring
lessons of Justices, Presidents, and Senators is the ever-present
reality of politics of all sorts in the naming of Justices to the High
With commendable even-handedness and good humor, Abraham
has recounted the stories of the one hundred eight successful nominations
to the Court and the many failed nominations (some obscure, some
spectacular). Abraham also includes a photo insert depicting all the
Justices of the Court from John Jay to Stephen Breyer, as well as
appendixes tabulating the various recent attempts to rate both Presidents
and Supreme Court Justices. In sum, Justices, Presidents, and Senators
is a welcome revision of a book that belongs on the shelf of any scholar
-- whether historian, political scientist, or jurist -- who regularly
assesses the Court and its workings.
Abraham does, however, slight one issue that has plagues at
least one recent President. Although Bill Clinton's appointees to the
Court -- Justices Ruth Bader Ginsburg and Stephen Breyer -- came with
distinguished records as legal academics, attorneys, and federal appellate
judges, he expressed on several occasions his regret that he could not
name to the Court someone with the broad political experience that
characterized such Justices as Earl Warren and Hugo L. Black, Jr. Abraham
does note the emerging profile to which future nominees to the Court
likely will have to conform (pp. 327-330), but he does not address the
fading of significant political experience from the list.
The creation of vacancies on the Court is an integral part
of the story of appointments to the Court, of course, and Abraham does
address such painful episodes as the debility of Justices Robert Grier,
Stephen J. Field, and William O. Douglas. However, Abraham's book bears
out the rueful comment of retiring Justice Sherman Minton in 1956 that far
more people would be interested in who would take his place than in the
man making room.
David N. Atkinson (who has written a series of valuable
articles scrutinizing Minton's Court career), has now presented us with
Leaving the Bench, a book unique in the literature of the Court; this
study focuses on the ways in which Justices have left the Court from the
1790s to the present. Atkinson, Curators' Distinguished Teaching Professor
of Political Science at the
University of Missouri^ÂKansas
City, is also professor of political science and law at the School of Law.
His prose is clear and refreshingly free of jargon. Like Abraham, he
arranges his narrative chronologically. His first chapter assesses why
Justices leave the Court; his next five discuss the departures of Justices
from the bench; and his last examines proposals dealing with the problems
of Justices who ought to step down but refuse to do so.
Leaving the Bench
is weakest in the early phases of the Court's history. Almost at the
outset, Atkinson's paragraph (p. 4) assessing the impeachment and trial of
Justice Samuel Chase presents a garbled and severely flawed account of the
Chase impeachment, in particular the charges on which Chase was impeached
and tried and the reasons that his trial ended in his acquittal. Almost as
problematic, Atkinson's accounts of departures from the Court during the
years from 1789 to 1864 are scanty and monotonous, perhaps reflecting the
paucity of sources for all but a handful of the Court's early members.
Even with such notable figures as Joseph Story and Roger B. Taney, we get
little sense of the Justices as anything but ailing men in middle or late
middle or old age who succumb to illness, bad medical attention, or
Atkinson's story picks up as he approaches the present, and
his narrative is enlightening and appalling by turns. It is painful to
read his account of Justice William O. Douglas's last days on the Court,
which were an ordeal for him, for his colleagues, and for the nation. It
is equally painful to read his account of Justice Thurgood Marshall's last
years on the Court; Atkinson tactfully but firmly suggests that Marshall
stayed on the bench too long and that, in his last years as a Justice, he
left nearly all of the work to his clerks. Perhaps the most painful story
of all is that of Charles E. Whittaker, who was named to the Court in 1958
only to step down four short years later. Atkinson reveals that Whittaker
suffered from depression, a mental illness that was an arcane mystery to
the medical profession in the 1950s, yet one that, Atkinson suggests,
would have barred Whittaker from even being nominated to the Court today.
Atkinson's story is almost entirely one of Justices
responding to the encroachments of age and illness; occasionally, a
Justice left the Court due to boredom with its work or ambition to succeed
in the political realm. Atkinson scants another way in which Justices
might leave the Court but have never done so -- impeachment. To be sure,
only one Justice, Samuel Chase, actually was impeached and stood trial;
however, there were threats of impeachment against Chief Justice John
Marshall (who was on the Jeffersonian Republicans' shopping list as the
next target after Chase), and Associate Justices William O. Douglas and
Abe Fortas. Indeed, in Fortas's case, the threat of impeachment was enough
to induce Fortas to resign from the Court to spare the nation a
constitutional confrontation. Readers might wish, especially in light of
the valuable scholarship on the history of impeachment, that Atkinson had
devoted a few more pages to assessing the declining significance of
impeachment as a threat to Justices.
Readers will wish that Atkinson had done more to assess how
the changing nature of the Court and its place in American life have
changed issues of judicial tenure and the quandaries of when a Justice
should step down. He suggests that the Douglas and Marshall cases indicate
a disturbing regression in the Court towards conditions as they were in
the last third of the nineteenth century, when Justices refused to step
down long after they not only became incapable of doing their jobs but
even after they had trouble recognizing the faces of their colleagues or
their families. In particular, he notes the possibility that Justices have
not only relied more and more on their law clerks, but that the law clerks
have become a shield for those Justices who are no longer up to the job.
But the balance of the story he tells -- of a Court blessed
with statutory provisions allowing Justices to retire on salary and with
access to the latest medical advances, and perhaps cursed with increasing
and increasingly severe attention from the media and the public --
suggests that no Justice will ever be able to stay on the Court when he or
she is manifestly unable to discharge his or her duties and
responsibilities. Indeed, at the same time that Atkinson worries about
future Justices refusing to go, he also notes that such Justices as Lewis
F. Powell, Harry A. Blackmun, and Byron White stepped down when they still
were healthy and up to the challenge, and that Justice William J. Brennan,
Jr., lost no time after his 1990 stroke in deciding that it was time for
him to go and acting on that decision. In sum, Leaving the Bench
suggests that there is more reason to hope that Justices will step down
when the time is right than to fear that they will not.
Library of Congress
Call Number: KF8744 .A98 1999
* United States. Supreme Court--Biography
* Judges--United States--Biography
* Judges--United States--Retirement
Citation: R. B. Bernstein . "Review of David N. Atkinson,
Leaving the Bench: Supreme Court Justices at the End," H-Law, H-Net
Reviews, October, 2000. URL: http://www.h-net.org/reviews/showrev.cgi?path=2034971378973.
“Professor Atkinson has written a short and engaging book devoted largely
to the theme of departure from the Court. It could have been a
considerably shorter book if he had focused more closely on this theme.
And it could have been a considerably more useful book if he had done more
serious research, rather than being distracted by a potpourri of curios
and anecdotes of varying degrees of interest but of dubious historical
Friedman, review of Leaving the Bench: Supreme Court Justices at the
End, by David N. Atkinson, The American Journal of Legal History
44 (October 2000): 447-449.