User:IntoThinAir/Garrow

This is the text of the article by Garrow at this link. I intend to format it to look more like Wikipedia articles normally do.

Introduction

Mental decrepitude and incapacity have troubled the United States Supreme Court from the 1790s to the 1990s. The history of the Court is replete with repeated instances of justices casting decisive votes or otherwise participating actively in the Court's work when their colleagues and/or families had serious doubts about their mental capacities. Contrary to conventional wisdom among legal scholars and historians, a thorough survey of Supreme Court historiography reveals that mental decrepitude has been an even more frequent problem on the twentieth-century Court than it was during the nineteenth. The historical evidence convincingly demonstrates that mental decrepitude among aging justices is a persistently recurring problem that merits serious attention.

Until recently no scholarly work has even attempted to examine this consistently overlooked but nonetheless highly instructive aspect of Supreme Court history. David N. Atkinson's Leaving the Bench: Supreme Court Justices at the End is an initially promising but insufficiently thorough evaluation of the relevant biographical evidence. In the end, Atkinson's book simply restates the prevailing conventional wisdom by voicing the overly sanguine conclusion that no formal remedies need to be considered.

Atkinson's failure to note how on three different occasions over the past sixty-five years members of Congress have surmounted conventional wisdom and confronted the danger of mental decrepitude is especially disconcerting. Just like the entire, quite extensive previous historiography, Leaving the Bench completely overlooks a 1937 proposal for a constitutional amendment mandating compulsory retirement of all justices at age seventy-five, which briefly contended for a major role as a possible substitute during the huge public controversy over President Roosevelt's "Court packing" plan. Similarly, Leaving the Bench also inexplicably fails to recount or even mention the equally illuminating but also little-remembered story of how the elite leaders of the American bar subsequently mounted a major push between 1946 and 1955 for the adoption of just such a constitutional amendment to mandate judicial retirement at age seventy-five. Twenty years after that effort fell short, another significant but in the end also unsuccessful legislative attempt to remedy judicial decrepitude was initiated during the late 1970s. All three of these reform efforts underscore how judicial decrepitude has been a recurring issue throughout recent Supreme Court history, and the first two occasions reveal how a realistic constitutional remedy might very well win enactment.

In the spring of 1937, a constitutional amendment mandating retirement at age seventy-five would have been approved by the Congress with virtual acclamation had only President Franklin D. Roosevelt not been so pigheaded as to utterly reject any such substitute for his own badly designed and abysmally presented plan. Seventeen years later, on May 11, 1954, the United States Senate adopted a resolution embracing just such a constitutional alteration. Had it not been for the historical happenstance of the Supreme Court handing down its landmark decision in Brown v. Board of Education only six days later, thus initiating a new era of congressional hostility toward the Court, the amendment's proponents might very well have succeeded in winning enactment of a measure that would have largely remedied the oft-recurring problem of mental decrepitude on the United States Supreme Court.

The abandonment of their effort, however, was not followed by the disappearance or even a diminution of instances of the problem. On the contrary, the post-1954 Supreme Court has featured at least a half-dozen instances in which serious questions were or should have been asked about whether judicial votes were being cast by a less than fully competent justice. The cases of Charles E. Whittaker, Hugo L. Black, William O. Douglas, Thurgood Marshall, and perhaps those of Sherman Minton and Lewis F. Powell, Jr., all indicate how the well-documented dangers that motivated the leaders of the American bar to push for constitutional reform in the early 1950s have not been alleviated in the slightest in the years since. Indeed, when Senator Sam Nunn of Georgia mounted his unsuccessful 1970s effort to enact a statutory procedure that would provide for the removal of any justice who became mentally disabled, Nunn realized full well that the problem of mental incapacity has troubled the modem Supreme Court even more than it characterized the nineteenth-century Court. Whenever a justice no longer possesses mental acuity and intellectual energy sufficient to understand, remember, and analyze the cases and arguments that come before the Court, both the immediate parties and American democracy suffer tangible harm.

More than seventy years ago, former Justice and future Chief Justice Charles Evans Hughes emphasized publicly that "[i]t is extraordinary how reluctant aged judges are to retire and to give up their accustomed work." Over the ensuing years little has changed. The United States Supreme Court since 1990 has featured four justices who continued serving after reaching the age of eighty: William J. Brennan, Jr., Thurgood Marshall, Harry A. Blackmun, and John Paul Stevens. Chief Justice Hughes was an early proponent of mandatory judicial retirement at age seventy-five, and he pointedly warned that "the importance in the Supreme Court of avoiding the risk of having judges who are unable properly to do their work and yet insist on remaining on the bench, is too great to permit chances to be taken." But no constitutional reform has occurred, and thus it remains undeniably true, as Chief Judge Richard A. Posner observed in 1995, that "[t]he judiciary is the nation's premier geriatric occupation." A careful review of both Supreme Court Justices' aggregate biographies, and the little-remembered efforts to enact a corrective amendment, shows that the Court's history offers some powerfully important present-day lessons and reveals how both scholarly knowledge and conventional wisdom are woefully incomplete. Today the conclusion unfortunately remains, just as Charles Evans Hughes said in 1928, that "[t]he exigency to be thought of is not illness but decrepitude."

I. The Pre-Civil War Supreme Court

Questions of mental incompetency have confronted the United States Supreme Court as far back as its very first decade of existence. In 1795, following the resignation of Chief Justice John Jay, President George Washington nominated John Rutledge of South Carolina as Jay's successor. Rutledge had served as one of the Court's initial associate justices in 1789-91 before resigning to become Chief Justice of the South Carolina Supreme Court, but news of the nomination generated a firestorm of controversy in the summer of 1795 both because of Rutledge's vituperatively outspoken opposition to a newly negotiated treaty between the United States and France and because of widespread questions about Rutledge's mental stability.

Leaving the Bench offers a two-page summary of the Rutledge controversy, but Atkinson's account fails to note or make any use of the one new scholarly study of Rutledge that has been published in the last half-century, James Haw's thoroughly impressive John and Edward Rutledge of South Carolina. Professor Haw reports that Rutledge's wife Elizabeth passed away in June 1792, and that even though a review of South Carolina Supreme Court decisions from 1792 to 1795 indicates that Rutledge's "recorded judicial opinions show no sign of mental incapacity or eccentricity," other contemporary sources demonstrate that by the time President Washington named Rutledge Chief Justice by means of a recess appointment on July 1, 1795, Rutledge was a "depressed" and "emotionally troubled man." Haw's understanding is significantly informed by a letter that United States Senator Ralph Izard wrote to a fellow South Carolinian about Rutledge some months later, in November 1795, describing how "[a]fter the death of his Wife, his mind was frequently so much deranged, as to be in a great measure deprived of his senses."

But perhaps most important of all was a series of political events that followed fast on the heels of Rutledge's selection. The controversial details of the treaty with France that former Chief Justice Jay had negotiated reached Charleston on July 12, and four days later Rutledge – who on account of eighteenth-century postal service apparently did not yet know that Washington had named him Chief Justice – delivered a widely publicized speech lambasting the proposed treaty in extremely harsh terms. Later in the month, after news of Rutledge's selection had spread, Haw reports that one leading Charlestonian warned a relative about what he called Rutledge's "'mad frollicks and inconsistent conduct' and 'wild and unproductive' speculations."

When Rutledge journeyed to Philadelphia in August of 1795 to sit as Chief Justice of the United States, "he showed no sign of ill temper or of the erratic conduct with which he was charged," Haw reports. But that demonstration appears to have done Rutledge little if any good, for as Haw notes, "the rising opposition to Rutledge's confirmation stemmed both from politically motivated anger at his vehement Jay Treaty speech and from reports that he was mentally and morally unfit to serve." Haw explains that "[t]he charge of derangement was just part of a broader assault on Rutledge's 'conduct and character.' There was talk of drunkenness, erratic behavior, and refusal to pay debts." To some, Haw says, Rutledge's "derangement explained the Jay Treaty speech, and the speech in turn proved his derangement."

On December 15, 1795, the United States Senate rejected Rutledge's nomination by a vote of fourteen to ten. Professor Haw concludes that the nomination "was defeated primarily for political reasons," but even in the weeks immediately preceding the Senate's vote, Chief Justice Rutledge's mental health appears to have taken a very decided turn for the worse. In November, while riding circuit in North Carolina, Rutledge became seriously ill, and his illness exacerbated his depression to such an extent that on his way home to Charleston Rutledge apparently tried "to drown himself at Camden" but without success. Haw reports that his family tried to guard against another attempt, but early in the morning a day or two after Christmas, Rutledge again attempted to commit suicide, this time by walking or jumping into Charleston's Ashley River. Onlookers saved him, and within a day or two's time Rutledge wrote what Haw terms a "very lucid" letter to President Washington resigning as Chief Justice of the United States.

John Rutledge's mental problems were no doubt quite serious, but no evidence or allegations ever suggested that his mental incapacity affected his obviously very brief official service on the Supreme Court. That was not the case, however, with Rutledge's colleague William Cushing, who was named as one of the Court's original associate justices in 1789 and remained on the bench until his death in 1810. Following Rutledge's resignation, Cushing was nominated and immediately confirmed as Chief Justice in January 1796 before refusing the promotion in early February on the grounds of ill health. One month later United States Senator William Plumer wrote to a New Hampshire friend about the sixty-three-year-old Cushing, saying that "time, the enemy of man, has much impaired his mental faculties." Cushing remained on the Court for over fourteen years after Senator Plumer's pronouncement that he was mentally impaired, and John D. Cushing's extensive dissertation reports that Cushing's "final years on the bench were difficult ones...With his mental facilities waning to the point of deranging his mind, but dependent upon his salary for an income, he remained in service through the intercession of friends who prevailed upon him to continue." No further or more descriptive contemporary details concerning Cushing's mental incapacity appear to have survived, and as Scott Gerber correctly notes, most twentieth-century historiographical characterizations of Cushing rely solely on a posthumous description of him as "incompetent" that Justice William Johnson, who served with Cushing from 1804 onward, voiced in an 1822 letter to former President Thomas Jefferson.

What impact Cushing's mental decrepitude may have had upon the Court's consideration or decision of cases remains unaddressed and apparently unanswerable. Following his death in 1810, two full decades passed before another case of clear mental incompetence confronted the Supreme Court. Henry Baldwin of Pennsylvania was named to the Court by President Andrew Jackson in early 1830, but within less than eighteen months the fifty-year-old Baldwin became so displeased that he talked openly of resigning. Baldwin stayed on, however, and in December of 1832 reports from Philadelphia recounted how "the Honorable Judge Baldwin was seized today with a fit of derangement." Less than two weeks later Daniel Webster alerted a friend to "the breaking out of Judge Baldwin's insanity," and another correspondent observed more pithily that "Judge Baldwin is out of his wits." Baldwin was hospitalized for what was called "incurable lunacy" and missed the entire 1833 term of Court. Baldwin's colleague Joseph Story informed Circuit Judge Joseph Hopkinson in May 1833 that "I am sure he cannot be sane. And, indeed, the only charitable view, which I can take of any of his conduct, is, that he is partially deranged at all times."

But Justice Baldwin nonetheless returned to active service on the Supreme Court, and remained a voting member of the Court for eleven more years until his death in April 1844 at age sixty-four. Legal historian G. Edward White has concluded that "[i]t is hard to say how much of Baldwin's incoherence as a jurist resulted from his mental problems," but no truly comprehensive study of Baldwin's signed opinions, or of his voting record on argued cases, ever appears to have been carried out. As Atkinson's one page treatment of Baldwin appropriately highlights, in 1838 the Supreme Court's Reporter of Decisions, Richard Peters, Jr., told Judge Hopkinson that most courtroom observers of Baldwin agreed that "his mind is out of order. I have heard in one day not less than five persons ... say 'he is crazy.'" Nonetheless, records from the 1830s and 1840s fail to indicate that any effort was ever made to remove Baldwin from his post as an Associate Justice.

II: The Supreme Court from the Civil War to World War I

After Baldwin's death in 1844, a full quarter century passed before the Court was again confronted with another case of a mentally disabled justice who nonetheless continued to participate actively in the Court's work. Justice Robert C. Grier was named to the Court in 1846 by President James K. Polk at the age of fifty-two, and for at least fifteen years Grier carried out his judicial duties in a distinctly above-average fashion. After being stricken with paralysis in the summer of 1867, however, Grier's mental competency began to deteriorate significantly, and by the fall of 1869 Grier's mental incapacity was beyond any doubt.

On November 27, 1869, the Court met in conference to discuss both the celebrated case of Hepburn v Griswold and a less noted case posing some similar issues, Broderick's Executor v Magraw. The Court that day was composed of just eight justices, for statutory reauthorization of a ninth seat was scheduled to take effect only on December 1, the same day on which a wholly new statutory provision allowing justices with at least ten years of service to retire with full pay upon reaching age seventy also would become effective. During the conference discussion of Hepburn, in which the Court of Appeals of Kentucky had held the Legal Tender Act of 1862 invalid, Justice Grier voted to reverse that holding. Coupled with the similar votes of Justices Miller, Davis, and Swayne, the result was a four to four tie, thus affirming the decision below but not resulting in any determinative ruling on the status of the Legal Tender Act. During the ensuing discussion of Broderick's Executor, however, as Justice Miller subsequently recounted, Grier "made some remarks. He was told that they were inconsistent with his vote in the former case." Grier thus changed his vote in Hepburn, providing Chief Justice Salmon P. Chase with a five-member majority.

Even though Chief Justice Chase was intensely committed to using Grier's vote to support a majority decision invalidating the Legal Tender Act, Grier's demonstration of mental incapacity during the conference discussion was such that every one of his colleagues acknowledged that action had to be taken. As Justice Miller later recalled, within "a week from that day every Judge on the bench authorized a committee of their number to say to the Judge who had reconsidered his vote, that it was their unanimous opinion that he ought to resign" and make use of the new retirement statute which had taken effect on December 1. Chief Justice Chase and Justice Nelson called on Grier in the presence of Grier's daughter, and on December 15 Justice Grier sent a letter to President Grant retiring from the Court effective January 31, 1870.

Grier's retirement, however, failed to save the Court from an ignominious and embarrassing official episode. At conference on January 29, 1870, with Grier still present, Chase obtained official approval of his Hepburn majority opinion, which he aimed to hand down on January 31, Grier's final day on the bench. Justice Miller's preparation of a dissent, however, understandably delayed official announcement of the decision until February 7, at which time Chase proclaimed that the vote of Justice Grier, even though Grier was no longer on that day a serving member of the Court, nonetheless stood behind the Hepburn majority holding.

History has not been kind to Chief Justice Chase's insistence "on deciding a constitutional issue when one justice did not really know what he was about" and thus "declaring an Act of Congress invalid by the vote of a confused mind." That harsh verdict is all the more appropriate in light of the fact that President Grant's two new appointees, William Strong and Joseph P. Bradley, both of whom were named to the Court on that very same day of February 7 (one replacing Grier and the other assuming the new ninth seat), were predictable supporters of the Legal Tender Act. In addition, as one careful student of the cases has emphasized, "Measured by the intensity of the public debate at the time," the legal tender battle represented "one of the leading constitutional controversies in American history" and Hepburn itself was "one of the first cases to hold substantive Congressional legislation unconstitutional." Quite unsurprisingly, the constitutional question of the Legal Tender Act's validity reappeared on the Court's docket within just one year's time, and in May of 1871 a new five-justice majority composed of Miller, Davis, Swayne, Strong, and Bradley explicitly overruled Hepburn v Griswold. As Charles Fairman, the leading scholar of the late-nineteenth-century Court, later observed, "[h]istory has surely vindicated the result which the new majority imposed."

Chief Justice Chase's egregiously bad behavior merits most of the condemnation for the institutional dishonor that the Supreme Court inflicted upon itself in the legal tender controversy, but there is no gainsaying the fact that it was only the presence of a mentally incompetent justice that allowed Chase to manipulate the Court's consideration of Hepburn in the way that he did.

Following the legal tender debacle, however, less than a decade passed before the Court was confronted with yet another case of manifest mental incompetence on the high bench. Justice Nathan Clifford had joined the Court in 1858 at age fifty-four as a nominee of President James Buchanan, and for approximately fifteen years Clifford provided the Court with more than acceptable judicial service. By at least 1877, however, Clifford's mental capacity was declining, and Justice Miller informed one correspondent in March of that year that Clifford's "mental failure is obvious to all the Court." In early 1878, Chief Justice Waite assigned Clifford the opinion in a case in which Clifford at conference had voted with the Court's majority, but Clifford rejected the assignment, telling Waite that "I think I did not vote for the judgement." Waite's biographer later concluded that this was "a clear instance of [Clifford's] mental failure."

Clifford nonetheless continued to participate actively in the work of the Court, and his deterioration led Justice Miller to observe that "in the work we have to do no man ought to be there after he is seventy." Clifford's continuing presence on the Court also appears to have informed an 1878 speech that Justice Miller delivered to the New York State Bar Association, in which he forthrightly asserted that some new method above and beyond the "utterly inadequate" congressional power of impeachment needed to be available for displacing disabled justices. "There are many matters which ought to be causes of removal that are neither treason, bribery, nor high crimes or misdemeanors." Miller included some purely "[p]hysical infirmities" on his list, but he specifically identified "the decay of the faculties by reason of age, insanity, [and] prostration by disease from which there is no hope of recovery – these should all be reasons for removal, rather than that the administration of justice should be obstructed or indefinitely postponed."

Within months, however, the Court's situation took a decided turn for the worse when Justice Ward Hunt, already a physically weak presence on the bench, was struck speechless with paralysis in early January of 1879. Appointed to the Court only in 1873, Hunt lacked the ten years of service necessary for paid retirement pursuant to the 1869 statute. Thus Hunt remained in office, although rarely if ever participating in the work of the Court, until a special pension bill for him was approved by the Congress in January 1882.

More than eighteen months before Hunt's tardy departure, however, Justice Clifford's mental incapacity reached truly crisis proportions when he suffered some form of a stroke just prior to the beginning of October Term 1880. Justice Miller described the situation bluntly: "Judge Clifford reached Washington on the 8th [of] October a babbling idiot. I saw him within three hours after his arrival, and he did not know me or any thing, and though his tongue framed words there was no sense in them." Fortunately for the Court, Clifford did not actively participate in any of its work during the 1880 term. However, even though Clifford, unlike Hunt, qualified for paid retirement under the 1869 statute, he nonetheless retained his seat until the time of his death on July 25, 1881. By way of an obituary notice, The Nation magazine publicly observed that Clifford's "mental faculties had been impaired for some time previous to his death, and his place on the bench has been practically vacant in consequence. He refused to resign, however, in the hope that the election of a Democratic President might render certain the appointment of a Democratic successor." Irrespective of whatever motives Clifford or his political allies may have had, however, Clifford's ongoing presence as a mentally incapacitated justice inflicted clear public harm upon the Supreme Court to a degree that stopped just short of what had been incurred in the case of Justice Grier.

After Clifford's exit, fifteen years passed before the Court confronted its next mental incapacity crisis. This time it involved Justice Stephen J. Field, who had joined the Court in 1863 at age forty-six and hence had witnessed what happened when first Grier and then Clifford had remained on the bench too long. The primary biographer of Melville Weston Fuller, who succeeded Morrison R. Waite as Chief Justice of the United States in 1888, concluded that even "[i]n the early [eighteen] nineties Justice Field's mind began to fail." During 1892-93 Field provoked a prolonged controversy within the Court over the wording of the official headnote to the decision in O'Neil v Vermont, and in early 1895 Justice John Marshall Harlan told his sons that Field had acted "like a mad man" during the Court's consideration of the Income Tax Cases. Field's own principal biographer, Carl Brent Swisher, wrote in 1930:

During the winter of 1896-97 Field's mind became noticeably feeble. His questions in the court room at times indicated that he had no conception of the arguments that were being made before him. It was reported that he voted on cases and then forgot how he had voted...His colleagues at times found it wise to coach him on cases before them.

Apparently even at some point in late 1895 or very early 1896, Chief Justice Fuller attempted to persuade Field to retire but met with no success. As a result, Fuller henceforth assigned no further majority opinions to Field. During October Term 1895, Field delivered just two minor opinions on behalf of the Court in the last months of 1895, and then just a single majority opinion in March of 1896. That opinion turned out to be the final occasion on which Stephen J. Field spoke for the Supreme Court, even though he remained a voting member of the high bench for another twenty months, finally retiring on December 1, 1897.

Soon after news of Field's impending departure became public in October 1897, a reporter for the Chicago Times-Herald, Walter Wellman, printed an embarrassingly detailed story describing how two unnamed justices had visited Field one evening the previous spring to "coach" him concerning a draft opinion. Field by that time was eighty years old, and his visitors found him

in an unusually lethargic condition. He sat in a big armchair, his head bowed down upon his breast, his eyes closed. It was with difficulty that he recognized his callers and exchanged a few words with them. Then his eyes closed again, and the two justices looked at one another as if to inquire what should be done next.

"Finally," Wellman recounted, one of the visitors took out a detailed statement of the case.

He asked permission to read this to Justice Field, and taking silence as consent proceeded to read aloud. For some minutes Justice Field's head lay still upon his breast. His eyes remained closed. No one in the room could be sure that he understood a word that was uttered.

But presently the old justice lifted his head and opened his eyes. It seemed that the legal phrases, the constitutional arguments, the statements of law so familiar through all these years to his mind had at last roused the sleeping brain to activity. In another moment or two Justice Field raised his right hand, warningly.

"Read that again," he commanded.

When the passage had been reread the veteran jurist exclaimed: "That is not right. That is not good law. You err when you say so-and-so."

And then Mr. Field, now thoroughly roused, delivered an argument which for depth, clearness and force astonished both his listeners. This done, he relapsed into his former comatose condition. When the two visitors gathered up their papers and left the room Justice Field was still asleep. He did not know when they left.

Wellman all but admitted that this had been recounted to him by one of the two visitors themselves.

When the two justices compared notes on their way downtown together they were both forced to admit that Justice Field was right. He had assaulted their position so successfully that they were forced to abandon it. And in this way, as a matter of fact the aged jurist really overturned a decision of the court, for other justices who agreed with these two were also forced to change their views when the arguments advanced by Mr. Field were reported to them by their colleagues.

Wellman concluded:

To this day it is an open question with the two justices who called on Mr. Field that night whether or not the veteran was fully conscious at the time he delivered his argument. It seemed to them that the legal phrases which his ears heard and carried to his brain simply roused his mind to a sort of automatic activity. Once set going, that mind operated with accuracy and unfailing logic, apparently without effort. At least nothing else, no other sort of mental stimulus, could at that moment have found response in coherency in his mind. He was oblivious to everything save his second nature, which was the law and its interpretation.

Automatic or not, little doubt exists that Justice Field remained on the Court for at least two years beyond when his mental incapacity should have prompted his retirement. One of his colleagues, Justice Henry Billings Brown, who himself quite willingly chose to step down from the bench at age seventy, later wrote that in his experience many justices were still intellectually effective at age seventy, but that those who remained beyond that age were no longer competent by age eighty. "During that decade the work of the Supreme Court tells heavily upon the physique of its members, and sometimes incapacitates them before they are aware of it themselves...Of the four men of our Court who lost their minds, all of them lost them while they were still upon the Bench."

Following Field's replacement by Justice Joseph McKenna in early 1898, a full decade passed before further difficulties caused by judicial disabilities confronted the Court. By the outset of October Term 1909, Justice William Moody, who had joined the Court less than three years earlier at age fifty-two, had become completely incapacitated as a result of what apparently was one or another form of amyotrophic lateral sclerosis ("ALS"). In late October Justice Rufus W. Peckham died at age seventy, and five months later Justice David J. Brewer died suddenly at age seventy-three. New Justice Horace H. Lurton took Peckham's seat in December 1909, but the uppermost problem throughout what one careful historian later called "[p]erhaps the worst year in the history of the Court" was the growing enfeeblement of seventy-seven-year-old Chief Justice Melville Fuller. The Chief Justice's biographer readily acknowledged that Fuller "stayed on the bench slightly longer than he should," but any danger of Fuller staying on for yet another term ended with Fuller's sudden death in early July of 1910. Justice Oliver Wendell Holmes, who had joined the Court in 1902, poignantly informed a friend that "[t]he Chief died at just the right moment, for during the last term he had begun to show his age in his administrative work, I thought, and I was doubting whether I ought to speak to his family, as they relied on me."

III: The Supreme Court from World War I to 1937

Following Chief Justice Fuller's death, more than a decade went by before the increasing mental decrepitude of Justice Joseph McKenna, who had succeeded Stephen J. Field in 1898, produced the Court's next internal crisis. Several federal judges who were well acquainted with McKenna's previous work as a circuit judge had strongly and explicitly opposed his Senate confirmation in the belief that McKenna's legal abilities fell well below the minimum standard for the United States Supreme Court, but McKenna's performance during his first twenty years of service on the high bench appears to have been at least minimally adequate. Charles Evans Hughes, who served with McKenna from 1910 to 1916, later wrote that even in those years McKenna was an indecisive jurist. "He had little to say in conference [and] was hesitant to express a definite view, often saying that he would prefer not to vote until he could 'see the opinion.'"

In any case, by the summer of 1921, when former President William Howard Taft succeeded the late Edward Douglass White as Chief Justice of the United States, the seventy-eight-year-old McKenna's mental acuity had certainly begun to slip. In April of 1922, after an initial six months of experience with McKenna during October Term 1921, Chief Justice Taft complained to his brother Horace about McKenna's mental incompetence: "In case after case he will write an opinion and bring it into conference, and it will meet objection because he has missed a point in one case, or, as in one instance, he wrote an opinion deciding the case one way when there had been a unanimous vote the other, including his own." Taft indicated that he already had unsuccessfully broached the subject of retirement with McKenna, for the problem of having a mentally incapacitated Justice on the Court was dire indeed: "McKenna's vote may change the judgment of the Court on important issues, and it is too bad to have a man like that decide when he is not able to grasp the point, or give a wise and deliberate consideration of it."

Indeed, as David J. Danelski has argued, Justice McKenna may very well have not fully understood what he was doing when he cast his decisive vote with the five-to-four majority in Truax v Corrigan, a December 1921 decision striking down an Arizona law prohibiting judicial injunctions against labor protests. "Since McKenna was moderately sympathetic to labor, one might have expected him to uphold the statute as Holmes, Brandeis, Clarke and Pitney voted to do in conference. But McKenna cast his crucial vote with the conservatives and held fast." Similarly, Danelski has questioned, why in the following term, in the famous case of Adkins v Children's Hospital of the District of Columbia, did McKenna vote with the narrow five-justice majority to void the minimum wage law that was at issue in that case when just six years earlier McKenna himself had written the Court's majority opinion upholding the constitutionality of such statutes in the well known case of Bunting v Oregon?

McKenna's mental incapacity apparently became even worse during the ensuing term of October 1923. Justice Holmes complained to a friend in early March of 1924 that his own opinion in one trademarks case "awaits the oscillations of McKenna to determine whether it shall be the judgment of the Court." The following month Chief Justice Taft polled his colleagues as to whether Justice McKenna should be expressly asked to retire. Five other justices agreed with Taft that he should, but when Justice Holmes was indecisive and Justice Brandeis answered no, Taft held back from taking action.

During the summer of 1924, Chief Justice Taft and Justice Willis Van Devanter visited McKenna's physician, Dr. Sterling Ruffin, and the doctor readily agreed that McKenna should retire. McKenna again resisted any such suggestion, however, and Taft reluctantly decided to wait until after the early November presidential election before taking further action. Then Taft and Van Devanter again conferred with McKenna's physician, "who concurred with us that his mental grasp was by no means such as it had been, and that he was not able to do hard, sustained mental work."

Thus on November 9, Taft convened a conference at his home of all the justices except McKenna. Taft told his colleagues, as he recounted the meeting in a memorandum he prepared the following afternoon, that in his judgment Justice McKenna

had ceased to have the physical strength to command his mental energies for such a sustained effort as to make his opinions worthy of his own record or of the Court, and that it seemed to me unwise for us to decide any case in which there were four on one side and four on the other, with Mr. Justice McKenna's casting the deciding vote. This was agreed to by every one of the seven Associate Justices present [including the previously hesitant Holmes and Brandeis].

Taft then had Justice Van Devanter bring McKenna's adult son to Taft's home, and the Chief Justice informed the younger man of the message he would soon convey to his father. Even though Taft asked the son not to tell his father what was transpiring, he apparently did so, for early the next morning McKenna telephoned Taft and asked to come see him. When McKenna arrived, as Taft recounted in the memorandum he wrote later that day, "I told him that we had reached the conclusion that through a lack of physical strength he was not able to command his mental energies in such a way that he could do the work on the Court." Taft reminded McKenna how once in their Robing Room McKenna had said that he would not stay on the Court after he could no longer do the work, or after his colleagues concluded that he could not, and Taft told him "that we had reached the conclusion that that time had come because we did not think he could do the work."

McKenna disagreed, contending that he had written each and every opinion Taft had assigned him. "I told him then I had not assigned anything but the simplest cases to him and that even the opinions in those cases when returned by him had either to be reassigned or else had to be so changed, in order to meet the opinion of the Court, that it was quite evident he could not do the work." McKenna then finally acquiesced and agreed that "our opinion would control him." McKenna would retire in early January 1925, and Taft would assign him several last simple opinions. In his subsequent memorandum, Taft confessed that "[I] did not say to him, what of course is the fact, that for two years the situation has been such that we have felt it a violation of our duty not to speak earlier."

Chief Justice Taft's explicit acknowledgment that the Court should have acted sooner than it did to secure McKenna's removal from the bench foreshadowed by less than five years a gentler decline in Taft's own mental acuity. From the outset of October Term 1929, even the seventy-two-year-old Taft himself acknowledged that he was slipping. "I am older and slower and less acute and more confused. However, as long as things continue as they are, and I am able to answer in my place, I must stay on the court in order to prevent the Bolsheviki from getting control." Ironically, Taft's insistence completely contradicted the argument for mandatory judicial retirement at age seventy that he himself had articulated sixteen years earlier in a well known book. In 1913, Taft had stated that

in a majority of cases when men come to be seventy, they have lost vigor, their minds are not as active, their senses not as acute....In the public interest, therefore, it is better that we lose the services of the exceptions who are good Judges after they are seventy and avoid the presence on the Bench of men who are not able to keep up with the work, or to perform it satisfactorily.'"

By the time that William Howard Taft reached the age of seventy-two, the Chief Justice should have taken his own earlier advice, and Taft's biographer later acknowledged that by December of 1929, "the Chief Justice's mental deterioration became a matter of growing concern to his family..." Thankfully for both the Court and for Taft's own historical reputation, the Chief Justice resigned his position on February 3, 1930.

One of the saddest and most historically underappreciated instances of a Justice's increasing mental decrepitude prompting his colleagues to request his retirement occurred in January 1932, with Oliver Wendell Holmes, who by then was almost ninety-one years old. Back in 1910 Holmes had written to a friend about "the mistake that I have seen it to be in others to remain on the bench after seventy" years of age, but once Holmes reached his own ten year mark of High Court service in 1912, at age seventy-one, his occasional thoughts about retirement were replaced by the view that "I shall hold on unless something gives way." One of Holmes's sympathetic biographers has reported that the Justice "sometimes dozed" during the Court's conferences even as early as October Term 1928, but by the late summer of 1931 Holmes found it harder and harder to write. Once the 1931 term commenced, Holmes was often visibly drowsy on the bench, and Chief Justice Hughes acknowledged that Holmes was "slipping. While he was still able to write clearly, it became evident in the conferences of the Justices that he could no longer do his full share in the mastery of the work of the Court."

Hughes's biographer indicated that "Holmes' brethren began to fear that he would bring criticism upon the court," and in early January 1932, as Hughes himself later recounted, "a majority of the Justices asked me to request him to resign. I consulted Justice Brandeis," Holmes's closest colleague, "who agreed that the time had come for Justice Holmes to retire and that I was the one who should take the matter up with him. The other Justices were of the same view. This was for me a highly disagreeable duty," but on Sunday morning, January 10, 1932, Hughes called on Holmes and articulated his message. "Justice Holmes received my suggestion, which was made as tactfully as possible, without the slightest indication of his resentment or opposition. At his request I got out from his bookshelves the applicable statute and he wrote out his resignation with his usual felicity of expression." Thus even what may have been the single most distinguished career in the entire history of the United States Supreme Court ended in an explicitly requested retirement because of increasing mental decrepitude.

IV. The New Deal's Missed Opportunity

Five years later, when President Franklin D. Roosevelt launched his "Court packing" assault on an institution whose consistently conservative judicial decisions had vitiated many of the New Deal's most important new programs, the age of the Court's Justices became a major public issue. Columnists Drew Pearson and Robert S. Allen had already successfully pinned the jurists with the less than flattering nickname of "The Nine Old Men," and although six of the justices were older than seventy, that half-dozen included liberal icons Louis D. Brandeis and Benjamin N. Cardozo (plus Chief Justice Hughes) as well as the reactionary trio of Willis Van Devanter, James C. McReynolds, and George Sutherland. Partisan commentators like Pearson and Allen had asserted that the seventy-four-year-old Sutherland was "failing," but the ironic truth of the matter was that the Supreme Court in early 1937 - unlike so many other times in the Court's previous history - actually did not include a single Justice against whom a case of mental decrepitude could be accurately lodged.

For over a year preceding Roosevelt's public announcement of his eventual "Court packing" proposal on February 5, 1937, the President's advisors had pondered whether to attack the ideological problem that the Court's conservative justices represented by means of a mandatory retirement measure. Attorney General Homer S. Cummings told Roosevelt in January 1936 that "[w]e might well be giving some serious thought to an amendment to the Constitution (should we find we are forced to that point) which would require the retirement of all Federal Judges, or, at least, all Supreme Court Judges, who have reached or who hereafter reach the age of seventy years." "Such an amendment," Cummings added, "would probably encounter less opposition than almost any other I can think of." Eleven months later, that same idea was championed publicly by Princeton University professor Edward S. Corwin, and Attorney General Cummings forwarded a copy of Corwin's writing to the president. Solicitor General Stanley F. Reed was unimpressed, telling Corwin that "I wonder whether you over-emphasize the possibility of requiring retirement at seventy. It seems too small a thing to justify a constitutional amendment," but Cummings was strongly attracted to the idea. He told Corwin that "I have often thought that much was to be said for a constitutional amendment requiring retirements when the age of 70 is reached. I am wondering if there would be much opposition to such an amendment if it were so framed as not to affect the present judiciary by making it apply to future appointments only."

But Roosevelt wanted to solve the problem that existed with the present Court, and he wanted to solve it in less time than ratification of a congressionally approved constitutional amendment by three-fourths of the states would require. Thus, Roosevelt chose to call for enactment of a statute authorizing a president to name an additional justice, up to a maximum of six, for each sitting justice with over ten years of service who did not leave the Court within six months of attaining the age of seventy. Roosevelt's official message to Congress spoke passingly about "the question of aged or infirm judges," and contended that a "lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions," but neither the Administration nor its supporters in the press ever contended that any of the sitting justices were actually mentally decrepit. Roosevelt's plan, as well as his message, failed to acknowledge that the problem was the constitutional ideology, not the judicial capacity, of the Hughes Court's Justices.

Even before the President's measure was announced, however, House Judiciary Committee Chairman Hatton W. Sumners of Texas, who understood that two of the four most conservative justices, Willis Van Devanter and George Sutherland, were open to retiring under the right circumstances, had been quietly trying to avert a head-on collision. Sumners believed that a primary obstacle to Van Devanter's and Sutherland's departures lay in how a 1932 economy-in-government statute had halved former Justice Holmes's annual pension from $20,000 per year to $10,000. That financial vulnerability was the happenstance result of how the existing federal judicial pension statute failed to acknowledge that former justices had "retired" rather than simply resigned from the federal bench. Representative Sumners successfully hurried a remedial statute through Congress, but politically his effort was of course "too late," even though Justice Van Devanter took advantage of the enhanced retirement protection as soon as October Term 1936 concluded.

The history reflects that Roosevelt's proposal was in deep trouble, particularly because of liberal discomfort with its disingenuousness, even before opposition senators persuaded Chief Justice Hughes, with an important assist from Justice Brandeis, to submit to the Senate Judiciary Committee a factual and understated letter that utterly vitiated Roosevelt's misformulated attack on the Court. Two attentive journalists, whose 1938 book remains the richest and most detailed account of the "Court packing" crisis, concluded that the Chief Justice's letter revealed to everyone just how "utterly hollow" the president's professed criticisms were, and even Hughes himself later acknowledged that his missive had had "a devastating effect by destroying the specious contention" that the Justices needed help. When the Court just one week later reversed its own prior stance and upheld a minimum wage law, and then two weeks after that upheld the constitutionality of the Wagner Labor Relations Act, the judicially imposed "death sentence" for the Roosevelt plan was all but complete.

In between the public issuance of Hughes's letter on March 22 and the ensuing brace of remarkable Supreme Court decisions, however, public attention for a brief time focused on the possibility that a constitutional amendment mandating retirement of justices at age seventy-five might indeed emerge as a serious alternative to Roosevelt's plan. This aspect of the "Court packing" controversy has inexplicably gone unmentioned in all of the major, standard secondary accounts of the battle, but contemporary congressional records and newspaper stories detailed it prominently.

Ten days after President Roosevelt's initial bombshell announcement, Louisiana Democratic Senator Allen Ellender proposed a constitutional amendment requiring the retirement of all federal judges and justices at age seventy. Two days later, Nebraska Democratic Senator Edward R. Burke submitted one mandating compulsory retirement at age seventy-five. Burke's proposal drew decidedly more public attention than Ellender's, but early news reports stressed that given Roosevelt's insistence upon a quick statutory change, no constitutional amendment "is considered to have more than the slightest chance of adoption." In mid-March, Florida Democratic Senator Charles O. Andrews had introduced a more complicated and far-reaching amendment that also incorporated mandatory retirement at age seventy-five, but none of the amendments had been at the center of legislative debate prior to the March 25 Senate Judiciary Committee testimony of Columbia University Law School Dean Young B. Smith. Dean Smith, a Roosevelt Democrat, voiced strong opposition to the President's plan but pointed out that a superior alternative approach was also available:

[A]n amendment to deal with the specific issue before this committee now can be drafted with ease, can be stated in simple language, and can be acted upon promptly. That would be an amendment fixing the tenure of the Justices by requiring them to retire at a specified age. Whether the age be fixed at 70 or 75, 1 do not think is a matter of controlling importance, but I would prefer 75.

The Judiciary Committee Senators were clearly intrigued by Smith's proposal, and the witness readily opined that "if the President of the United States put his influence behind it it would be adopted." Senator Burke told Smith that he would modify his own proposed amendment so as to bring it into full accord with Smith's views, and the next morning's New York Times gave Smith's testimony top of page one coverage. Times correspondent Turner Catledge reported that the possibility of a mandatory retirement amendment becoming a substitute for Roosevelt's plan had "assumed definite proportions" as a result of Senators' receptiveness to Dean Smith's recommendation. But Catledge emphasized that "the substitute proposal would have slight chance of final adoption unless it were supported by Mr. Roosevelt." The following day Catledge again reported on page one that Smith's suggestion had generated "the first new enthusiasm for an amendment," but reiterated "the practically undeniable reality that no amendment could be substituted for the President's plan and put through Congress without the support of Mr. Roosevelt himself".

At least one Democratic member of the House took up the call for a mandatory retirement amendment, and ongoing advocacy of Senators Andrews's and Burke's constitutional amendments was supplemented by yet a third highly similar proposal, also incorporating mandatory retirement at age seventy-five, introduced by Democratic Senator William G. McAdoo of California. Notwithstanding the widespread majority-party support for such a measure, however, President Roosevelt's insistent refusal to give any consideration whatsoever to supporting any constitutional amendment gradually brought all efforts to just as dead an end as Roosevelt's own "Court packing" plan already had reached.

The aftermath of the Roosevelt initiative's political collapse did witness some ongoing law review discussion of the underlying question. Writing in the Harvard Law Review in early 1938, Charles Fairman detailed how the Supreme Court's own history showed that "[v]oluntary retirement, in any real sense, is very rare indeed." Fairman argued that "retirement should be made compulsory at such an age as to give promise of a vigorous and effective judiciary," and recommended that "there should be a method for separating from his office a judge who has become prematurely disabled." Fairman warned that "[w]here only the judge himself may act, the public interest is not adequately protected."

V: The New Deal Court

Throughout the entire New Deal era, over sixteen years passed following Justice Holmes's forced retirement in 1932 before another case of Supreme Court incapacity arose in 1948. Justice Frank Murphy, a former Attorney General, had been named to the bench by Roosevelt in 1940 and had become one of the Court's most dependable liberal votes. Murphy was hospitalized several times during 1946 and 1947, and became excessively dependent on the sleeping pill Seconal. In the winter of 1947-48, the fifty-seven-year-old Murphy was consistently fatigued and was hospitalized for more than two months. Murphy continued to participate in the work of the Court, and consultations with a psychoanalyst appear to have improved his state of mind. However, Murphy developed yet another physical dependency, this time to the painkiller Demerol, and by the time that he returned to the Court in February of 1948, some of his closest acquaintances were convinced that the Justice was regularly purchasing illegal drugs.

Murphy at first thought he was doing better during the summer of 1948, but he again was hospitalized, and his "dependence on drugs" meant that he was unable to return to Washington for October Term 1948 until early December. During his 1948 absence, as during his earlier hospitalizations, Murphy generally "deputized" fellow Justice Wiley Rutledge to cast his votes, but Murphy's most assiduous biographer, Sidney Fine, also reports that "[o]n at least one occasion Rutledge, [Justice Hugo L.] Black, and Murphy's clerk jointly decided what Murphy's votes should be." Once Murphy did return to Washington, his secretary and his sister concluded that the Justice's drug problem was now such that he was illegally purchasing drugs approximately twice a day. Murphy managed to make it to the conclusion of October Term 1948 despite some undocumented rumors that either Chief Justice Fred M. Vinson and/or President Harry S. Truman believed he should resign, but on July 19, 1949 he died. As Fine notes, during Murphy's two final terms, the justice authored just 18 of the Court's 224 majority opinions, plus 15 dissents and 3 concurrences. More importantly, but perhaps much too charitably, Fine also contends that

[t]here is no indication that Murphy's excessive use of drugs during his last two terms on the Court materially affected his performance as a justice. None of the available evidence suggests that he behaved erratically in public during this period, and his decisions ... and his votes were entirely consistent with the pattern of his decisions and votes in the years immediately preceding.

However, if Murphy's drug problem meant that any significant number of his votes were indeed being cast by some combination of his clerks and his colleagues, then Frank Murphy should have resigned from the United States Supreme Court at least one year prior to the time of his death.

VI: The Campaign for a Constitutional Amendment, 1946-1955

David Atkinson makes no reference whatsoever to Justice Murphy's dependence upon illegally obtained drugs in his less than one page treatment of Murphy and never notes Sidney Fine's rich biography. Yet far and away the most startling omission in Leaving the Bench is not Atkinson's failure to provide important and illuminating details about any one or another of the Court's succession of mentally decrepit justices but the complete and utter absence of any reference whatsoever to a fascinatingly instructive constitutional reform campaign aimed at imposing mandatory retirement for Supreme Court justices at age seventy-five that the elite leadership of the American bar mounted between 1946 and 1955. Historical remembrance that this effort ever occurred appears to be almost wholly lacking from the entire post-1954 historiography of the Supreme Court, and ergo a brief recounting of the story, and an appreciation of its stunningly ironic denouement, merits exposition here.

The progenitor of the campaign for a constitutional amendment mandating retirement at age seventy-five was Edwin A. Falk, a New York native who graduated from the University of Pennsylvania in 1914 at age twenty and received his law degree from Columbia two years later. Following service as a naval ensign during World War I, Falk combined an active New York law practice with the authorship of a string of books on naval history issues. By 1946 Falk was a highly active and well known member of the Association of the Bar of the City of New York, and in the October issue of its Record, Falk published a ten-page article entitled In Time of Peace Prepare for War.

His title notwithstanding, Falk's subject was the Supreme Court, not post-war military preparedness, and Falk's starting point was his belief that sooner or later, another presidential or congressional assault on the independence of the Supreme Court, similar to what had happened in 1937, was bound to recur. What Falk had in mind was "plugging the loopholes in the Constitution's protection for the Supreme Court" by means of an amendment that would "fortify" the Court's independence and "prevent future assaults." Falk called for an "exhaustive study" to "find as many as possible of the loopholes," but his initial list of suggestions included a provision fixing the number of justices firmly at nine and a prohibition mandating the justices' exclusion from politics. In addition, "removal in cases of mental or physical incapacity should be rendered simpler." Falk also, however, suggested that perhaps the advent of each new presidential term should witness the mandatory retirement of the Court's two most senior justices, so that each chief executive would be assured at least two appointments. Falk stressed that "[t]his outline is, of course, merely suggestive. The important thing now is to start the ball rolling and, so far as possible, to keep its movement nonpartisan."

Two months later, New York City Bar Association President Harrison Tweed announced the creation of a new Special Committee on the Federal Courts to be chaired by none other than Edwin A. Falk. The committee held its first official meeting in January 1947, and within a week of that date a parallel committee of the American Bar Association reported that it expected it would soon have before it several proposals that were being considered by the New York City Bar, including one

requiring the retirement of justices on reaching a certain age (75 years is suggested). The fixing of the proper age would doubtless involve a considerable study of the actual effect of longevity on the work of the justices. Perhaps by reason of strength it should be four score years. In that we cannot now express an opinion.

The New York City Bar committee met again in February, and when the ABA committee assembled in early June 1947, it

heard a discussion [by Edwin Falk] with regard to possible constitutional amendments fixing the number of Justices of the Supreme Court at nine, making them ineligible to the office of President or Vice President of the United States, requiring their retirement on reaching the age of 75 years, and prohibiting them from performance of duties other than those of their judicial office. The committee was not ready to take any action with regard to these matters

since Falk's own New York City bar committee had not yet officially endorsed them.

By September the New York City Bar was reporting that its committee had ratified specific proposals, and after what was termed "an animated debate and division," a meeting of the full Association approved a quartet of specific items in early December: the number of justices would be fixed at nine, mandatory retirement would take effect at the end of the Term during which a justice turned seventy-five, no justice would be eligible for the presidency or vice-presidency within five years of serving on the Court, and the Court's appellate jurisdiction would no longer be subject to statutory alteration. New York City Bar opponents of the initiative apparently argued that "during this interlude of serenity the subject should not be stirred up," but Falk and his allies responded successfully by stressing the preferability "of taking action to safeguard the Court at a time when its independence is not imminently threatened rather than at the time when the next attack is launched."

In January 1948 the parallel ABA committee approved the proposals, and the following month the ABA's House of Delegates added its ratification at the Association's mid-year meeting. But when the ABA committee then made several primarily cosmetic improvements in the resolution (including fixing mandatory retirement at age seventy-five, irrespective of the Court's terms), and represented the amended measure to the full House of Delegates at the ABA's Annual Meeting in early September 1948, the measure was voted down by a tally of fifty-two to forty-three and returned to the committee.

The measure's proponents were undaunted, and in mid-December the New York City Bar committee sponsored a speech endorsing its proposals by retired Supreme Court Justice Owen J. Roberts. Justice Roberts's speech was published as the lead article in the very next month's American Bar Association Journal, and thereby gave the proposals far and away the widest publicity they had yet received. Regarding mandatory retirement at age seventy-five, Roberts called it "a wise provision. First of all, it will forestall the basis of the last attack on the Court, the extreme age of the justices, and the fact that superannuated old gentlemen hung on there long after their usefulness had ceased." Late in December 1948 the ABA committee, citing Justice Roberts's "forceful" speech, re-endorsed the existing proposals and sent them back to the ABA's House of Delegates. At the mid-year meeting a month later, however, members who wanted to enlarge the measure to include other provisions, such as a requirement that new justices possess judicial experience, successfully argued that the recommendation be referred to the ABA's Standing Committee on Jurisprudence and Law Reform.

That standing committee reviewed the various provisions, focusing much of its attention on the question of whether a proposed amendment should indeed prohibit statutory alteration of the Court's appellate jurisdiction, but when it recommended the proposals to the House of Delegates in September 1949, the House rejected the appellate jurisdiction provision and sent the entire package back to the committee.

Once again the committee resolved to return its recommendations to the House of Delegates at its next meeting in late February of 1950, and at that time the House officially approved both a proposed amendment fixing the size of the Court at nine and compelling retirement at age seventy-five, and a separate proposal rendering individuals ineligible for the presidency or vice-presidency within five years of having served on the Court. The ABA's action was reported in the New York Times, and the resolution itself called for the relevant ABA committees to actively pursue the introduction and adoption of just such a constitutional amendment, but over two years of quietude then ensued before the New York City Bar Association noted in May 1952 that its committee had "entertained at luncheon Senator John Marshall Butler of Maryland," a conservative Republican who had entered the Senate only in 1951 but who was a member of both the Judiciary Committee and its Subcommittee on Constitutional Amendments. Butler already had introduced a resolution proposing an amendment that would bar any sort of electoral candidacy within five years of any federal judicial service, but Butler had told the committee that he now would support its own "legislative program." In mid-May of 1952, without even a prefatory speech on the Senate floor or any other attendant publicity, Butler introduced a resolution detailing an amendment that would fix the Court's size at nine, mandate retirement at age seventy-five, and insulate the Court's appellate jurisdiction over constitutional cases from any congressional alteration. Four months later City Bar Association President Whitney North Seymour notified his members - without any reference to the quietly pending resolution - that Butler would introduce their measure in the upcoming Eighty-third Congress.

On February 16, 1953, Senator Butler introduced Senate Joint Resolution 44, and this time he explained on the floor that its purpose was to "forestall future efforts by a President or a Congress seeking to nullify or impair the power of the judicial branch" and warning that "there always is the danger of a renewal, sooner or later, of the campaign against judicial independence." Butler's 1953 resolution included a provision protecting the Court's appellate jurisdiction (which the ABA recently had endorsed) in addition to mandating a nine-member bench, retirement at age seventy-five, and a five-year ban on justices' presidential and vice-presidential eligibility. An identical companion measure, House Joint Resolution 194, was soon introduced by Representative Edward T. Miller of Maryland, but not until early 1954 did Butler's measure receive a hearing before the Senate Subcommittee on Constitutional Amendments. In advance of the hearing, Albert E. Jenner, Jr., the chairman of the ABA's Jurisprudence and Law Reform Committee, along with three other leading lawyers and Senator Butler, called on United States Attorney General Herbert Brownell. "We are pleased to report," the ABA representatives informed their colleagues, "that we obtained a very favorable reaction from the Attorney General who, we believe, will assist with the Amendment at the proper time."

Senator Butler was the first witness when the Senate subcommittee hearing opened on January 29, 1954. "At the present time," he told his colleagues, "the Supreme Court of the United States is surrounded by an aura of tranquility-certainly an appropriate climate in which to consider any proposal affecting its composition and jurisdiction." Butler was followed first by former Justice Roberts, then by American Law Institute (and former New York City Bar Association) President Harrison Tweed, and then by Albert Jenner of the ABA. Jenner explained that the proponents' goals included "insur[ing] against physical or mental impairment of individual Justices attendant upon age" and, upon prompting from Butler, Jenner detailed their December conversation with Attorney General Brownell. The Attorney General "stated that he favored these proposals," Jenner explained, but wanted mandatory retirement at age seventy-five to be extended to cover all federal judges, not just Supreme Court justices. Another ABA representative, Henry W. Nichols, added that he had discussed the proposed amendment with highly esteemed New Jersey Chief Justice Arthur T. Vanderbilt, who was "strongly in favor" of justices retiring at a given age and who personally was "in favor of the age of 70 rather than age 75."

Proof that the proponents had carefully done their political homework came in the form of an endorsement letter from North Dakota Bar president E.T. Conmy; North Dakota Republican Senator William Langer was chairman of both the Constitutional Amendments Subcommittee and the full Senate Judiciary Committee. Edwin Falk, speaking as one of three final witnesses, underscored how the age limit would "forestall the 'old men' criticism" and noted how the late Chief Justice Hughes had also supported mandatory retirement at seventy-five. No opposition voices were present to be heard.

Soon after the hearing, Falk submitted a letter to Senator Butler stating that the proponents almost certainly would accept compulsory retirement at age seventy-five for all federal judges, and by the time that the full Senate Judiciary Committee filed a unanimously affirmative report on the resolution with the Senate on March 24, the resolution had been amended and expanded accordingly. Noting the attractiveness of judicial pensions, the committee nonetheless acknowledged that "ample retirement provisions do not represent sufficient inducement for retirement of Justices" and concluded that "continued active service by Justices over the age of 75 tends to weaken public respect for the Supreme Court." The committee added that "[t]he age at which retirement is compulsory is not nearly so important as the proposition that there be an age at which retirement is compulsory."

Hardly six weeks after the Judiciary Committee's report was filed, Senate Joint Resolution 44 was called up on the Senate floor. Senator Butler cited Charles Evans Hughes's 1928 account of Justice Grier's and Justice Field's forced retirements, and engaged in a friendly colloquy with Louisiana Democrat Russell Long, but the following day the first voices in opposition were heard. At the behest of Michigan Republican Senator Homer Ferguson, Butler agreed to drop the five-year prohibition on presidential or vice-presidential candidacies and acknowledged that it had drawn a good deal of private opposition from Senators. But liberal Missouri Democrat Thomas C. Hennings, Jr., emphasizing that the proposed amendment had gotten virtually no public news attention, contended that neither the hearing record nor the committee report made a persuasive case for instituting mandatory retirement at age seventy-five. Hennings argued that the proposal "has not had the kind of thorough study and debate that all constitutional amendments should have," but Butler responded by citing the history of forced retirements and the extensive consideration the ABA had given the proposals. Hennings complained that only nine senators were on the floor for their exchange, but within minutes the resolution was put to a vote and passed by a tally of fifty-eight to nineteen (with nineteen absent and not voting), well more than the two-thirds margin needed for approval. Aside from Oregon independent Wayne Morse, all of the "no" votes were cast by Democratic senators, including Hubert H. Humphrey of Minnesota, Mike Mansfield of Montana, Warren Magnuson of Washington, and John Pastore of Rhode Island. Forty-three Republicans and fifteen Democrats voted in favor, including John F. Kennedy of Massachusetts and Lyndon B. Johnson of Texas.

Three days after the Senate approval, the New York Times published a cautionary editorial echoing Senator Hennings's concerns. The amendment had been approved with "virtually no notice by the American public. No matter how meritorious such an amendment may be-and in this case we think it is meritorious-this is not the right way for the Senate to pass upon a substantial change in the nation's fundamental law." Emphasizing that "an alteration of the Constitution is certainly something that deserves more attention than the Senate gave in this instance," the Times endorsed both the provision explicitly mandating a nine-justice Court, which it called the "most important" measure, as well as the appellate jurisdiction item. However, the paper added, "There may be more question as to whether it is desirable to write into the Constitution a specific age for compulsory retirement."

Both Edwin Falk and Leonard D. Adkins, another leading lawyer active in the effort, replied to the Times editorial with letters to the editor welcoming the endorsement and stressing how much discussion the particulars already had received within the organized bar. Adkins stated that it was "very important" that the House of Representatives also act on the proposed amendment during the current session of Congress, and in late June a House Judiciary subcommittee accorded the proponents a one-day hearing.

Senator Butler testified first, explaining how the Senate had adopted Attorney General Brownell's suggestion that the mandatory retirement provision apply to all federal judges and how he had jettisoned the five-year ban regarding presidential and vice-presidential candidacies. "[R]ather than risk losing the whole amendment, I consented to having this section dropped," he revealed. Butler continued:

During the debate on the floor I was importuned by the leadership of the Republican Party to delete that section. I am certainly not at liberty to say how the President feels about anything, but I think the President felt that with that section in it the amendment will cause such a controversy in the States that the whole thing may be defeated, and he didn't want it to be defeated.

Addressing mandatory retirement, Butler explained that "[i]t is the consensus of authoritative opinion that some limit should be placed on service, and that the age of 75 strikes the happy medium between experience and senility." He added that "history has shown that some of the members of the Court have stayed longer than they should have stayed in the best interest of the people."

Just as in the Senate hearing, the proponents' star witness was former Justice Owen J. Roberts. Roberts asserted that "[i]t has occurred again and again and again that ... men who were superannuated and really unfit for service clung to their offices and became in effect useless to the Court." Clearly at ease, Roberts recounted to the subcommittee his initial impression of the almost ninety-year-old Oliver Wendell Holmes when Roberts first joined the Court in 1930. "I thought him quite remarkable in conference and so on. But my colleagues said, 'You haven't seen anything. Justice Holmes has failed enormously. You don't know because you don't know how wonderful he was 8 or 10 years ago. He has failed.' He did fail. He fell asleep on the bench at times.'"

Roberts's frankness did not stop there. He added that Justice Brandeis "held on longer than he wanted to" and that "Chief Justice Hughes tempered the wind to him in the assignment of cases in the later years, just as he did to Holmes." Following Roberts, Albert Jenner, Edwin Falk, and Harrison Tweed detailed the backing the amendment had from the ABA and from such legal luminaries as former Attorney General William D. Mitchell, but the hearing testimony was not sufficient to move the resolution to the House floor. The House subcommittee endorsed the Senate's version while recommending that the five-year ban on presidential or vice-presidential candidacies be reinstated, but the full House Judiciary Committee voted to table the resolution by what the ABA characterized as a "close" vote following "extensive debate."

The ABA activists informed the August 1954 annual meeting that the House Judiciary Committee might well have approved the resolution had the issue of the five-year ban not arisen, and the ABA's House of Delegates readily endorsed a recommendation deleting that provision from the proposed amendment after the ABA's own committee asserted there would be a "strong chance" for success in the House in the next Congress if that emendation were made. In the November elections, however, majority control of both the Senate and the House shifted from Republicans to Democrats, placing the amendment's strongest supporters in a decidedly weaker position than what they had enjoyed in the Eighty-third Congress. Senator Butler and Representative Miller each reintroduced the measure in the new Eighty-fourth Congress in February 1955, and a Senate hearing was initially scheduled for mid-July of 1955, but the hearing was postponed and no further legislative action on the resolutions ever ensued.

What of course had most fundamentally changed between early May of 1954 and mid-July of 1955, above and beyond partisan control of the Congress, was that the previously uncontroversial political status of the United States Supreme Court had been utterly transformed by the burgeoning conflict kicked off by the Court's initial May 17, 1954, ruling in Brown v. Board of Education. The Brown decision was most unpopular with the conservative congressional Democrats and Republicans who had formed the core of support for the bar associations' proposed amendment. Now, memories of the 1937 Roosevelt attack upon the Court were quickly supplanted by anger at how new Chief Justice Earl Warren and his brethren appeared ready to upset America's political equilibrium. The Court's second ruling in Brown, in May of 1955, did nothing to staunch the contentious atmosphere, but what most fundamentally altered congressional sentiment concerning the Court was not its desegregation holdings but the series of decisions negating various anti-Communism measures and investigations. Those began quietly with Quinn v. United States, Emspak v. United States, and Peters v. Hobby in May and June of 1955, then accelerated significantly with Pennsylvania v. Nelson, Slochower v. Board of Higher Education of the City of New York, and Cole v. Young one year later, and finally peaked dramatically in May and June of 1957 with a sextet of rulings in Schware v. Board of Bar Examiners of New Mexico, Konigsberg v. State Bar of California, Jencks v. United States, Watkins v. United States, Sweezy v. New Hampshire, and Yates v. United States.

Most illustrative of how the ABA's congressional world was so completely upended by the Court's mid-1950s rulings was the utterly inverted stance of Maryland Senator John Marshall Butler toward the Court he had been so eager and enthusiastic to protect from congressional or executive encroachment in 1953 and 1954. Within just three years Butler was transformed into "an outspoken critic of the Warren Court," and in early 1958 Butler introduced a bill that would have removed from the Court's appellate jurisdiction bar admissions cases like Schware and Konigsberg – precisely the sort of legislative intrusion his 1953-54 constitutional amendment had been designed to prohibit. Butler's bill failed, but as Court scholar Walter Murphy noted several years later, the Maryland Senator "sorely regretted his earlier efforts to protect the Court's jurisdiction."

VII: The Supreme Court, 1956–1975

Congress's failure to enact a constitutional amendment mandating compulsory retirement at age seventy-five of course brought the Court no respite from its recurring problem with mentally decrepit justices. Indeed, Senator Butler's measure had been dead for hardly six months before Justice Sherman Minton, a former Democratic Senator from Indiana whom his one-time congressional buddy Harry Truman had named to the Court in 1949, began to conclude that his mental powers were failing at the relatively young age of sixty-five. In late December 1955, Minton wrote to former President Truman to inform him that "I think I shall retire next fall. I am slipping fast. I have to carry a cane now all the time. I find my mental health keeps pace with my physical health. I find my work very difficult and I don't have the zest for the work that I used to have. So I am firmly convinced that I should retire." Minton knew that under the recently amended judicial retirement statute, he would need to wait until he had accumulated fifteen years of federal judicial service in order to retire at full salary at age sixty-five. His appeals court service, which had preceded his promotion to the Supreme Court, had commenced in October 1941, and ergo Minton remained on the high bench for another ten months after confessing to Truman that he was "slipping fast." In May 1956, he privately told his brethren he would be leaving soon after October Term 1956 commenced, and in early June he self-pityingly told fellow Justice Felix Frankfurter that "[b]ut for my feeling of inadequacy and decrepitude and the embarrassment which comes from this deferential treatment accorded my 'senility' I would stay on."

Thirty-one years ago Professor Atkinson wrote his unpublished doctoral dissertation on Justice Minton, and his two-page treatment of Minton in Leaving the Bench draws on that earlier work. In an excerpt from his dissertation published in 1974, Atkinson detailed how during

his last term, [Minton] became persuaded his mental faculties were declining. He became exceedingly upset when, upon returning to his chambers, he could not remember what had been said only moments before in oral argument. He thus concluded that he was no longer able to perform on a level of competency which litigants before the Court had a right to expect.

Leaving the Bench expressly attributes that information to one of Minton's October Term 1955 law clerks, and Atkinson, like other scholars, attributes Minton's decline to the effects of pernicious anemia. Minton announced his retirement in early September 1956 and officially stepped down from the bench on October 15. Minton made no secret of his debilitation, and readily told Time magazine that his deterioration was not just physical. "Worst of all, it's gone to my brain. It affects my power to concentrate and think and retain arguments in my mind."

Following Justice Minton's retirement, the Supreme Court's next encounter with mental incapacity began within less than eight months. Justice Charles E. Whittaker joined the Court in late March of 1957 at the age of fifty-six, replacing retired Justice Stanley F. Reed. Whittaker previously had served for just nine months on the United States Court of Appeals for the Eighth Circuit, and before that he had served slightly less than two years as a United States District Judge in Kansas City. Whittaker years later told an interviewer that his district court service had been "a perfect delight" but that the "somewhat withdrawn" life of an appellate judge based in a city other than where his court was headquartered had made his Eighth Circuit experience "a rather drab existence." That writer concluded in 1972 that "Whittaker didn't feel overworked nor did there appear any signs of undue stress or physical breakdown" during his lower court service, but within literally the first ten weeks of Whittaker's arrival at the high Court, his brethren quickly realized that all was not well with their newest colleague. As Justice Harold H. Burton wrote in his diary in mid-June 1957, "Justice Whittaker has been on the edge of a nervous breakdown but hopes to finish the term and then recuperate."

Only thirty years later, with the completion of a still-unpublished 1997 master's thesis by Craig Alan Smith, has a truly full depiction of Justice Whittaker's mental and emotional difficulties become available. In an interview with Smith, Clyde J. Rayburn, Jr., who clerked for Whittaker throughout Whittaker's years as a district and then circuit court judge, revealed that at the district court, Whittaker's longtime secretary, Celia Barrett, "informed other staff members that Whittaker had suffered previous 'breakdowns' at the Watson law firm" where he had practiced before ascending the bench. Smith's assiduous research unearthed evidence of "numerous incidents throughout his life when Whittaker suffered from anxiety and depression to the extent that it impaired his ability to work," and Smith appropriately concludes that "Whittaker brought to the Supreme Court a serious medical condition that should have prevented his appointment."

In a November 1970 interview, Whittaker recalled that an appointment to the United States Supreme Court is "one for which no man is fully prepared. No man knows what he is getting into when sent to that Court. The volume is tremendous, there is no suspension of the pressures. It is a day and night proposition which gets to be quite onerous." For Whittaker it became onerous almost immediately, and despite the optimistic cast of Justice Burton's June 1957 diary note, Whittaker told one clerk that he had thought of quitting the Court that first summer. "By the fall of 1957," Craig Smith discovered, Whittaker "was under the care of a Kansas City physician and taking medication to calm his nerves. His medications were mostly sedatives used to treat hypertension and insomnia." Once again, as in Kansas City, Whittaker's secretary, Celia Barrett, "confided to" his October Term 1957 clerks "that Whittaker had suffered previous nervous breakdowns as a lawyer. The other justices were unaware of this."

Whittaker made his work as a justice considerably harder for himself on account of an article he later remembered having read in US News & World Report. An interviewer to whom he recounted the story said it had made "a deep impression" on Whittaker, for "[t]he article, accusatory and strongly implying that it was really the clerks who wrote the opinions of the Court, totally firmed Whittaker's resolve that opinion writing was his function" and his alone. But the compositional burden was not Whittaker's only problem, for he sometimes was either uncertain how to vote on a particular case or indecisive about his choice once he had made it. He explained in a 1971 interview how

[a]fter a case is decided in the conference, those Justices not quite satisfied may go around to the chambers of another justice to express views and ... see if he can agree or must dissent ... [It is] not amiss to say that there is a good deal of politicking. For example in a four to four case, the one hold-out will be impleaded and beseeched ... by both sides. That's a very uncomfortable position to be in but [it] does happen with some frequency.

For Whittaker it happened with greater frequency than for most justices, and in early 1958-at least according to the later recollections of William P. Rogers, who had succeeded Herbert Brownell as United States Attorney General-Whittaker twice phoned Rogers "complaining that he wanted to quit. Rogers refused to take Whittaker's complaint to the president; he convinced the justice to give the position more time." Whether or not thanks to Rogers, Whittaker's attitude did gradually improve, and in October Term 1959 he even achieved the unusual success of privately "turning around" five of his colleagues who had voted differently from him at conference but who switched their votes and abandoned Justice Frankfurter's proposed majority opinion after they had read Whittaker's proposed dissent, which ended up speaking for a seven-justice majority.

Craig Smith reports that by 1960 Whittaker, who previously had told friends he envisioned serving only five years on the high Court, was telling his clerks that he might stay for ten. One year later, however, during the winter of 1961-62, Whittaker's mental state took a very decided turn for the worse. Smith says that "Whittaker ceased to function effectively on the Court in early February, 1962." Four weeks later, Smith writes:

Whittaker's anxiety and depression led him to contemplate suicide. It was early March 1962, and Whittaker was at his home in Washington. Although he did not attempt suicide, Whittaker was preparing to kill himself. His son, Keith, was at Whittaker's home, and he recalled clearly the incident when he prevented his father from committing suicide. It was a tense moment; father and son each looked the other in the eye, and Whittaker promised his son that he would not go through with it. Keith admitted frankly, "He would have killed himself if I had not been there to stop him."

A "few days" later, on March 6, Whittaker was admitted to Walter Reed Hospital. Smith says that Whittaker's "complete, unexpected physical and mental breakdown" was "not precipitated principally because of his dissatisfaction with his work, the pressures of deciding cases, or the infighting that occurred on the Court" but "principally because he suffered from acute anxiety, and the medications designed to control this condition complicated it with counteractive effects." Once admitted to Walter Reed, "Whittaker's doctors told him nothing was organically wrong with him," despite his ongoing problems with "difficulty sleeping, loss of appetite, and difficulty concentrating." Whittaker's son Keith was a physician and Air Force captain, and Keith Whittaker later told Smith that "it was clear to me that the doctors had no decent treatment for his agitation. It was difficult to decide if he was so agitated because of the disease or the drugs they were giving him. I realized the drugs were causing his agitation."

Chief Justice Earl Warren visited Whittaker at Walter Reed on March 15, and "knew immediately that Whittaker was incapacitated and began steps to accomplish his formal retirement on grounds of disability." Smith states passingly that Whittaker's "doctors persuaded him to retire," and cites a former clerk's account of how Justice Tom C. Clark later told him that Chief Justice Warren "panicked when Whittaker admitted himself to the hospital." According to that story, Whittaker "was apparently given no choice but to retire," and indeed the very next day after Warren had visited him, a three-doctor board of Walter Reed physicians certified that Whittaker was suffering from a "permanent" medical disability and therefore recommended that he "be retired from the position of Associate Justice."

Whittaker left Walter Reed on March 23, but only on March 29 was his retirement publicly announced. Whittaker released a written statement saying that he had entered the hospital on account of "physical exhaustion from the great volume and continuous stresses of the Court's work" and that the doctors had concluded that any "return to the Court would unduly jeopardize my future health." Whittaker moved back to Kansas City within three weeks of leaving the Court, and his son Kent later said "that it took the better part of a 'year and a half'" before Whittaker was able to "get back to normal." Whittaker lived until 1973, and in a late 1971 conversation with some university students, the former Justice frankly acknowledged that he had left the Court because "he simply had a nervous breakdown."

Justice Whittaker's mental or emotional incapacity does not appear to have altered any of his actual votes or influenced the outcome of any argued cases, but it posed an extremely serious threat to the Court that only Chief Justice Warren's aggressive intercession had eliminated so speedily. Four years after Whittaker's retirement, on the occasion of Warren's own seventy-fifth birthday, Warren told reporters that he was "not at all averse to a compulsory retirement date" for justices but then almost playfully added that for "many years" he had believed that mandatory retirement "would be a good thing" for "all public officials," including those in the legislative and executive branches.

After Whittaker, however, only seven years passed before the Court in 1969 was confronted with its next instance of mental incapacity in the person of eighty-three-year-old senior Associate Justice Hugo L. Black. Biographer Roger K. Newman has reported that even by 1966 Black's memory was beginning to fail. "Court work is harder now," Newman quotes Black as telling a former clerk in September 1967. "My mind isn't as quick." Newman adds, without citing a source, that "several times" toward the end of October Term 1967 Justice William O. Douglas "noted that in conference 'Black made unexpected remarks that don't make any sense.'" Newman says that the mental decline affected "Black's ability to reason by analogy" and cites several 1967-68 instances of what he calls Black's "bizarre" on-the-bench behavior.

But Black's mental condition worsened significantly following a small stroke on July 18, 1969. Black's wife Elizabeth wrote in her diary that after it "he had lapses in his memory" and that five days later, when his clerk Kenneth Bass brought a request for a stay order to Black's home, Black's reaction was worrisome. "Ordinarily, Hugo would have known immediately what he wanted to do. However, with his impaired memory, he questioned Ken for two hours, often repeating questions Ken had already answered." Elizabeth Black concluded that her husband "has his intelligence but not his memory. It made me realize more fully that I do not want him to remain on the Court if he has less than his whole mentality."

Elizabeth Black wrote in her diary that "Hugo himself seems not to realize that his mentality has been impaired," but indicated at the end of July that her husband was considering retirement. A week later Mrs. Black wrote that "I have the gnawing conviction that Hugo must get off the Court," and in late September she noted that his ability to recall details remained "a little bit scrambled." Black nonetheless was in his seat when October Term 1969 commenced, but one retrospective account of October Term 1969 later reported that Black's ongoing "memory problems cropped up at unpredictable times." At the end of the term in June 1970 Elizabeth Black renewed her efforts to persuade her husband to retire, but Black wanted to surpass the record length of Supreme Court service that Justice Stephen J. Field had set during the 1890s and ergo remained on the bench when October Term 1970 commenced. In February 1971 Black turned eighty-five years old, and biographer Newman acknowledges that "[a]t times his memory, focus and sharpness were all seemingly gone. ... He found it more difficult to concentrate. His short-term memory was waning." Another account focusing on early 1971 concludes that "Black began to stumble badly in conference. He would become tired and confused, unable to remember which case they were on. He bitterly rejected [Chief Justice] Burger's suggestion, however, that the conferences end a bit earlier to accommodate him."

In earlier years, Black had told former clerks that "[o]ne of the hardest things you have to do up here ... is to know when to leave. If you stay too long, you impose terrible burdens on your colleagues." But just as with William Howard Taft forty years earlier, Black by 1971 was no longer willing or able to follow his own previous advice. Biographer Newman reports that by the summer of 1971, Black was outspokenly paranoid about the danger he imagined the United States faced from a military coup. Finally, on September 17, 1971, Black retired from the Supreme Court six months short of overtaking Stephen J. Field's record. Just eight days later, on September 25, Hugo Black died.

Less than four years after Black's retirement, a far more public crisis confronted the Court after seventy-six-year-old senior Associate Justice William O. Douglas suffered a serious stroke on December 31, 1974. At conference on January 6, 1975, his colleagues decided to postpone oral arguments in five cases likely to generate closely divided votes until later in the term, but Douglas's absence from the bench continued until the final week of March. Douglas's first day back was March 24, and the next morning he met with reporters. The account of the meeting that appeared in the New York Times was not encouraging. Douglas acknowledged that he was confined to a wheelchair and that "there is not the same energy I had beforehand," but he declared that "[w]alking has very little to do with the work of the court" and insisted that the question of retirement had "never entered my mind." He asserted that he would listen to tapes of all the oral arguments he had missed and would cast his vote in each and every case, but the reporters were clearly doubtful. John P. MacKenzie of the Washington Post termed Douglas's voice "weak" and noted that "at one point there was an embarrassing silence during which a reporter's question went unanswered." Characterizing Douglas as "pale and thin-faced," the Times's story stated that "[h]is voice was high, and it slurred once or twice." The Times's reporter described Douglas as "a frail and fragile old man, his voice thin and uncertain, his left arm hanging useless at his side, most of the once remarkable vigor ... drained away."

Douglas returned to the hospital on April 10, and two weeks later a story in the Times recounted how "[r]eports have recurred that Justice Douglas, during the three weeks that he was out of the hospital, became confused at times about his surroundings at the Court."' The Times's account intimated that reporters were not being told the full truth about Douglas's condition, and a subsequent description of Douglas's deportment during those weeks concluded that there was no doubt that "Douglas's mental condition [had] deteriorated. He repeatedly addressed people at the Court by their wrong names, often uttered nonsequiturs in conversation or simply stopped speaking altogether."

October Term 1974 concluded without Douglas returning to the bench and without any newly argued cases being decided in which Douglas's vote was decisive for a narrow majority. Indeed, at term's end the Court carried eight already argued cases over to the following term, and a Times story explicitly highlighted how the Court's press office refused to challenge the overwhelming evidence that Douglas's colleagues had privately agreed to hand down no cases in which Douglas's vote would determine the outcome. A subsequent account quoted an unnamed justice as acknowledging that such an agreement even precluded Douglas from casting determinative votes on petitions for certiorari:

Bill's votes were inconsistent with his prior positions. For example, he would vote to deny cert in cases where the issues were similar to earlier cases in which he had consistently voted to grant cert. So the purpose of the agreement was to protect Bill as well as the integrity of the Court.