Booknotes

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

The first question I had was, `Well, why do they leave? And then, `How do they leave? What are the circumstances?' And this takes a good deal of the book to explain the various circumstances of each of the justices who've been on the United States Supreme Court. And then finally, I ask the question, `When should they leave?'

Mr. ATKINSON: Well, we deal--I deal there with 100 of them.

Mr. ATKINSON: Well, because the last one to leave the court was Justice Harry Blackmun.

Mr. ATKINSON: Well, there are a number and I--I have a--I have a--a checklist in the first chapter of some of those reasons: ambition and dissatisfaction and...

Mr. ATKINSON: Might just read those.

Mr. ATKINSON: Well, that's--that's a very real possibility. No one has been impeached in court history. James Wilson might well have been impeached had he not died. Abe Fortas probably came closer than anyone else as a result of the difficulties he encountered because he took money from an indicted financier. Louis Wolfson and John Mitchell and the Nixon administration pressed the point, and--and he did, indeed, resign before the matter went any--any further.

Mr. ATKINSON: No, they don't. Justice McKenna once asked that of William Howard Taft when Taft was chief justice. He wanted to know whether he could be forced from the bench, and William Howard Taft said, `No, of course not.' McKenna was a particularly difficult case, because he was mentally incompetent toward the end of his career, and his colleagues, and particularly Chief Justice Taft, had a difficult time getting him to leave the court.

Mr. ATKINSON: He was chief justice during the 1920s.

Mr. ATKINSON: After he was president. He's the only person in American history to be both president and--and chief justice. He liked being chief justice more.

Mr. ATKINSON: And until the Retirement Act of 1937, pensions were not as they are now, and it's possible to retire, quite literally in most cases, at full pay. But early in court history, if one didn't qualify for a pension, there really was nothing available, and some persons had to have special acts of Congress passed in order to--in order to survive. They were dependent entirely on their salary. An example of that would be William Moody earlier in the century.

Mr. ATKINSON: If you've--if you've reached the age of 70, and you have 10 years of experience in the ju--federal judiciary, then you're entitled to take senior status and you can retire quite literally at full pay.

Mr. ATKINSON: Well, not--not--not--not really. The--the lower court judges are obliged to do a certain amount of work. But for Supreme Court justices, unless they want to sit on courts of appeals, they--they don't have to do anything. The other possibility is if one's 65 and has had 15 years of experience. There's also a possibility--and this didn't occur until 1939--to take disability. There's been one justice in court history who left because of disability, and that was Charles Whittaker.

Mr. ATKINSON: Well, you don't get a full pension.

Mr. ATKINSON: Yeah. You--you--you--you--you might get a half pension, I believe the arrangement would be.

Mr. ATKINSON: Ambition--ambition has been a reason from time to time. The very first chief justice, John Jay, left the court because he thought--correctly--that it was more important to be governor of New York. A more recent example would be Arthur Goldberg, who was put on the court by John Kennedy. Goldberg--Goldberg was somewhat restless on the court. He had been Labor secretary in Kennedy's Cabinet, and Lyndon Johnson wanted an opening on the court. He wanted an opening so he could put his good friend Abe Fortas on the court. And on Air Force One, while going to Adlai Stevenson's funeral, Johnson confronted Goldberg and discussed the matter of some position in government. A number of positions were suggested, according to--to Johnson's memoir, and he left in order to become the ambassador to the--the UN.

Now that was a fairly attractive position, because if Johnson suggested to him the possibility of a vice presidency at some future time, he would have had, as an example, Henry Cabot Lodge, who after all, was UN ambassador when Richard Nixon picked him to run in 1960 as vice president. But it was a major miscalculation on Goldberg's part, because if he thought that he was going to be a major player in American foreign policy through the UN, he was--he was mistaken, and he--he came to recognize that in later years. Johnson largely ignored him after he left the court. He got his opening, put Abe Fortas on the bench. And that's what Johnson wanted.

Mr. ATKINSON: Well, a number of them. I have done interviews in years past with--I can checklist some of them--John Marshall Harlan, Earl Warren, Stanley Reed, William O. Douglas, Hugo Black, Tom Clark, Charles Whittaker. I've had occasion to meet--when he visited the university where I teach, the University of Missouri-Kansas City--Harry Blackmun a few years ago, shortly before he retired. So a number of these people--a--and I found they--in years past, when I did interview work in the late '60s, they were very open.

Mr. ATKINSON: I've been teaching 32 years.

Mr. ATKINSON: At one university, the University of Missouri-Kansas City, the political science department there. And I teach a course also in the school of law at UM-KC.

Mr. ATKINSON: I am a lawyer.

Mr. ATKINSON: University of Iowa. Went to the law school there, and did graduate work there at the University of Iowa as well.

Mr. ATKINSON: Well, I got interested in it really about 1975 when I watched the circumstances surrounding Justice Douglas' illness. And it struck me as an interesting topic about which relatively little work had been done. A lot of interest in how people get on the court, but not so much interest in how they leave, and that struck me as something that ought to be--ought to be addressed. And the more I researched the field and the more I collected materials over a period of some 20 years, the more fascinated I became with the topic.

Mr. ATKINSON: Yes. And an example from the 19th century would be Benjamin Curtis, who--who disagreed with the Dred Scott decision and--prior to the Civil War--and quarreled with Roger Brook Taney. He was unhappy on the court. He indicated that he thought the salary was insufficient, but I think it fair to say that he was also dissatisfied.

There have been other people who were dissatisfied for a number of reasons. I think that Jimmy Byrnes, who left after a little more than a year, after Franklin Roosevelt had put him on the bench--he left to become the president's economic czar or assistant president, as some called him. He was impatient with the work on the court. One other person who isn't widely known would be John Clarke. Woodrow Wilson put him on the bench. He soon became, frankly, bored on the court. Wilson put three people on the bench. He also put Louis Brandeis on the bench; and Clarke was somewhat disturbed when he found himself disagreeing on some matters with Brandeis. But he disagreed pretty much all of the time with James McReynolds. McReynolds was a curmudgeon and a very difficult man in every way, a very prejudiced man, and he had been the attorney general with Wilson. Clarke found him very disagreeable. He was so pleased to get off the bench that William Howard Taft asked him to tone down his letter of resignation so it didn't sound so enthusiastic.

Mr. ATKINSON: They have in recent years done that. Now in past decades that wasn't always the case, but--and I'm reminded of the fact that William O. Douglas did not attend the final ceremonies for Felix Frankfurter, their disagreement had grown so intense inside the court.

Mr. ATKINSON: No one liked him.

Mr. ATKINSON: No one came to his funeral.

Mr. ATKINSON: Well, no, it was his--his...

Mr. ATKINSON: ...messenger.

Mr. ATKINSON: Yes.

Mr. ATKINSON: ...who was an African-American. Th--the justice was a notoriously bigoted person. And the only person that I have ever found who liked McReynolds, in his own way, was Dean Acheson. Acheson wrote a memoir once in which he indicated that he was able to get along with McReynolds, primarily by keeping him off topics where he was so disagreeable.

Mr. ATKINSON: He was.

Mr. ATKINSON: Well, his comments and his behavior. He wouldn't shake hands, for example, with Justices Brandeis or Cardozo. The justices shake hands before they--before they--they have their conference. He...

Mr. ATKINSON: Well, he was anti-Semitic, and he wouldn't sign letters of--of--resignation letters that--or letters of appreciation that colleagues signed when those justices left. McReynolds shocked everybody, though, by leaving his fortune to the children and orphans of Washington, DC.

Mr. ATKINSON: That's true. That's true.

Mr. ATKINSON: McReynolds? I believe he's buried in--in Kentucky. I--I have a list of all the burial sites at the end of the book.

Mr. ATKINSON: It is. It is. It is. No one has been buried west of Boulder, Colorado, though.

Mr. ATKINSON: Well, that includes an--a lot of people. That would include a lot of people and...

Mr. ATKINSON: The last who person who died on the court was Robert Jackson in 1954. Now Fred Vinson died--Jackson died, I may say, coming into the court one morning. He had previously experienced a heart attack. His doctor had told him to slow down, but he refused to do that; continued to work at full tilt, and experienced a second heart attack.

Fred Vincent also died on the court in 1953. Vincent had come back from a bar association meeting and he was stricken with a massive heart attack early in the morning in his apartment and--and did not survive long at all. The last picture I was able to find of the chair, which is the tradition of the court--when someone dies in office, they--they cover the chair with crepe. And the picture I include in the book is the picture of Benjamin Cardozo's chair. Justice Cardozo also died in office.

Mr. ATKINSON: Cardozo was appointed by Herbert Hoover. And Herbert Hoover later said that it was the most important thing he did for the American people, to appoint Benjamin Cardozo, who incidentally was a Democrat.

Mr. ATKINSON: Because of his distinguished record, and he, of course, was a very famous jurist at the time of his appointment to succeed Justice Holmes in 1932.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Well, that's true. He w--he became incontinent, following a stroke, and the justice was--was very ill following that stroke in the Bahamas on New Year's in 1975 and he stayed on the court much too long. He finally did leave in the fall, but it was not easy to get him to step aside, even though he was obviously impaired. A number of things happened. The court decided to leave him out, really, of--of close decisions, 5-4 decisions, those kinds of cases that might control the future of the country for a very long time. They simply omitted him.

Now Justice White at the time protested. We now have the letter; it's since been published. It was not known at the time. Byron White objected to that. He felt that it was a way in which the court had effectively removed Douglas from the decision-making process, and White's position was the only way you can legitimately do that is to impeach a justice and...

Mr. ATKINSON: A--at the--at the time, Warren Burger was.

Mr. ATKINSON: Yes, grand officiary.

Mr. ATKINSON: Well, they left him out. In other words, you had to have four votes besides his vote, and that was another way in which he was--he was ignored by the conference, by the court.

Mr. ATKINSON: Well, they would ignore his vote then and--and they would carry it over. They didn't want--they didn't want decisions turning on Douglas' vote because he was so impaired. Now there's a bit of history here, because in the 1950s when Douglas was in the Southwest, in Arizona, and a horse rolled over on him and he was--he was injured, he used the time he was in the hospital to write his--one of his first memoirs, "Of Men and Mountains." But during those year--during those months, while he was incapacitated, he cast his vote through Hugo Black. That--that--that was very troublesome to Felix Frankfurter in those years.

Mr. ATKINSON: Well, he did it. And he tried to do it again through Brennan, but it was not permitted this time.

Mr. ATKINSON: Well, there--there really--there really isn't. Peer group pressure has become increasingly important. This was a problem that concerned Samuel Miller in the 19th century. Miller was one of the major justices in the latter half of the 19th century. He was a physician, actually, a trained medical doctor, and he felt that some sort of constitutional amendment really--really should be re--should--should be passed, so that persons could be removed for incapacity. He even listed insufferable temper as a--as a--as a reason that might--might justify removal. But nothing ever came of that, so we have nothing that's equivalent to the 25th Amendment, which could be invoked to remove an American president.

Mr. ATKINSON: Well, we've had--we--we've had in court history several cases like that. And Justice McKenna probably is as good an example as--as one can think of in the present century. It was very difficult to get him to leave. He was reluctant to leave. William Howard Taft had a very difficult time persuading him to leave. Now Charles Whittaker had difficulty, too. He had previously suffered from depression. This was not widely known--it wasn't known at all. It was the sort of thing that would disqualify someone at the outset at the present time, but people didn't talk that much about health then and--and he--he left the court in broken--in broken health. In the 19th century, one of the grimmest cases involved Robert Grier.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Well, in--it...

Mr. ATKINSON: Well, that--in Grier's case, there didn't seem to be much--much--much help from the family, nor was there much help in the McKenna case, either. Justice Douglas' family did indeed encourage him to leave. But--they did what they could. But family is not always successful. But yes, you're right. Very often the family is reluctant to have a justice leave because they lose social position. An example of that would be in the 19th century, Stephen J. Field. Field, too, in the latter half of the 19th century was a major jurist, a very forceful personality. He stayed on the bench much too long, and his younger wife was in no--no--no hurry to see her husband leave. It would have meant the loss of--of social status and position.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Oh, G--G--Grier was--I--I don't recall offhand who--who put Grier on the bench.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Yes.

Mr. ATKINSON: You know, in 1866, four years before Salmon Chase, the chief justice, finally, along with other members of the court, managed to secure a--a resignation--four years before that happened, Grier suggested to Chase that he be given a room in the Capitol that he could move into so he could avoid walking any steps--up any steps--and there was no response that we know of from Chase. Truly amazing and astonishing proposal, that he just move into the Capitol and make that his residence.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Well...

Mr. ATKINSON: ...in--in many cases it was important to them. And in--in Grier's case, it appears to have been one of those reasons that discouraged resignation. Peer pressure really was what eventually secured his resignation.

Mr. ATKINSON: And a number of people have done that. William Strong, in the last century, left and encouraged some of his other colleagues to leave. John Clarke, who I mentioned earlier, left at age 65. He was dissatisfied, but he also voluntarily left. He had made a private fortune previously, and he felt that 65 was an appropriate time to leave. There was a justice earlier in the century, Henry Billings Brown, who spent a number of years on the bench even though he could scarcely see. He couldn't read, he had to be read to. A friend of his, when he was appointed, suggested that--that--he suggested to a friend, I should say, that he should leave when he turned 70. And on his 70th birthday, his friend appeared in Washington and reminded him of his promise years ago to leave when he--when he turned 70. The justice took it all in good humor and laughed, and--and not long thereafter, did leave.

Mr. ATKINSON: Well, that was a decision by the--the publishers. They--they--they thought that that was a--an interesting, even captivating picture.

Mr. ATKINSON: Th--that came from the--the Supreme Court.

Mr. ATKINSON: Well, the--the picture is of Marshall in his chambers.

Mr. ATKINSON: Well, it shows an elderly justice. The picture is not one that suggests decrepitude, but a degree of exhaustion, and it is a picture of Marshall toward the end of his career.

Mr. ATKINSON: Marshall was another justice who overstayed. He had deteriorated markedly toward the end of his career, and the law clerks had assumed an increased role by the time he left the bench.

Mr. ATKINSON: Well, I--I--I hope that the stories are sufficiently lively to interest a--a wide audience, people interested in the Supreme Court, people interested in American government and politics. These are people who, after all, do--do exercise a good deal of authority and power in our government. And so my--my hope is that--that the book will appeal to more than just political scientists and lawyers who are specialists in the Supreme Court.

Mr. ATKINSON: Well, I--I--I took the manuscript to them, and they--they proceeded to publish it, and I was very pleased with their work.

Mr. ATKINSON: You know, I'm not sure how many they did print, but they usually print several thousand and...

Mr. ATKINSON: It--it's under $30. I believe it's $29. The--the hope was to keep the book--even though it does have quite a few photographs--keep the book under $30, because if one's able to do that, why, the audience is larger.

Mr. ATKINSON: Yes.

Mr. ATKINSON: I didn't go to all of those, but I made a good many telephone calls to--to burial sites and checked and confirmed records, and I believe that they're all correctly located at this time.

Mr. ATKINSON: I--I've--I've been to a few of them, but--but not very many. Mo--most of them are--are in fairly ordinary state. Of course, the 19th century monuments show a good deal of wear and tear because those that were made of marble, like most marble monuments, do deteriorate. There's a--there's a site on the Internet, incidentally, where you can see a good many of these prominent tombstones.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Mm-hmm.

Mr. ATKINSON: Here in Washington, yes. Quite a few are here in the Washington--the Washington area.

Mr. ATKINSON: That--that apparently was his wish. Louisville was where the--the family settled after they came from Germany. That was where the justice's roots were, and so it was his wish that he be buried there.

Mr. ATKINSON: Quite a few. I hadn't realized--I hadn't--I hadn't made that count.

Mr. ATKINSON: That's--that--that's true. The--a number of justices were cremated. And, I believe, Justice Fortas was the only one who was not--was not buried in some location.

Mr. ATKINSON: Well, it is depressing material, but it depends on the story to some degree. Some of the justices met their end with a lot of fortitude. Some others presented truly depressing scenarios, but--but not everybody, not everybody.

Mr. ATKINSON: Well, I thought John Marshall Harlan met his end in a--in a--in a--in a very stoic...

Mr. ATKINSON: The second John Marshall Harlan. He was very ill from spinal cancer. He was--he was--he had no complaints. When people came to visit him, he apparently, as was his wont, inquired about them. He didn't--he didn't fix upon his own difficulties and--and pains. So some of the justices have--have--have exercised a good deal of fortitude under difficult circumstances.

Mr. ATKINSON: Well, they call it lying in repose, I'm told, at the court, because to lie in state requires a government act. So in recent years the justices have been--have been laid in repose in the Great Hall of the Supreme Court. And that was true with Earl Warren. And the first associate so treated was Thurgood Marshall, and since then, Harry Blackmun, William Brennan have all laid in repose.

Mr. ATKINSON: That was one of Andrew Jackson's mistakes. He was not well. It has been more recently suggested that it was obsessive-compulsive syndrome from which he suffered, but very, very difficult person for his colleagues to contend with.

Mr. ATKINSON: Oh, Story was an extraordinary pessimist. Everything was awful, and that's the way he was. He had a very low opinion of the appointment of Roger Brooke Taney, too, but after a while he, to some degree, changed his mind and spoke highly of Taney. But he was--he was given to pessimistic statements about the future of the country.

Mr. ATKINSON: Well, I think they were afraid of Campbell. He was the one person who left the Supreme Court in order to the join the Confederacy. However, he waited so long that he wasn't received with open arms in the South either, and his enemies in the South were determined that he not get any position of real responsibility, and he wasn't given any important position during the Civil War. However, afterwards, when there was talk about him rejoining the Supreme Court, Samuel Miller and others were very distressed by that talk. Actually, Campbell became a very successful lawyer after the Civil War, and he litigated a number of cases before the Supreme Court on behalf of captains of industry. It was said in those years if a large corporation had a difficulty, leave it to God and Mr. Campbell.

Mr. ATKINSON: Well, there were a number of persons, and the most prominent was--was--was Roger Brooke Taney himself. And he stayed on the bench. And...

Mr. ATKINSON: Yes, the chief justice. Stayed on the bench. And no one else left. No one else left at all.

Mr. ATKINSON: Well, I--I think the--the most unfortunate part of the legacy, of course, was that he wrote the unfortunate opinion in the Dred Scott decision that denied that African-Americans had rights as citizens. It was a provocative decision, and it broke the--the court apart. There were dissents, Curtis and--and Justice McLean and others. It--it was a very divisive opinion and an unfortunate opinion. It really wasn't until the 1930s when a more measured evaluation of Taney became possible, the biography of--of him written at that time by the late Carl Ben Swisher.

Mr. ATKINSON: Well, it--it--it--James Wi--Wilson was an extraordinary person. He was perhaps the best mind of the--of the early Washington appointees, one of the founding fathers. But he had a weakness, and his weakness was he could not resist land speculation, and he got in over his head. And when one spent more money than one had and compiled massive debts, as he did--you know, in those years there was no bankruptcy law. You--you--one went to prison, debtors' prison. And so his--his debtors--his debtors were on his heels. He was--he was, in fact, imprisoned. He got out.

And at the end of his life he was on the run with his much-younger wife. She was 32 years younger than he was, and he had started a second family. They had a small child in tow, and the justice was--at the end of his tether, he had contracted malaria. He had s--he suffered a stroke. And his debtor--his--his creditors were after him, and he was run to ground in a--in a--in a tavern. And it was in the tavern where he died in a delirium. A very sad case.

Mr. ATKINSON: Yes.

Mr. ATKINSON: No, no. The--the photographs were available of Taft, a sort of before and after while he was president. And--and he...

Mr. ATKINSON: Three hundred and twenty-six pounds. And he--he--he could diet down to 250 upon occasion. But the second picture is Taft when he returns from Asheville, North Carolina. He went to North Carolina hoping to be cured. He--Taft was a hypochondriac, and at his half-brother's funeral he began to--the funeral depressed him a good deal, and thereafter his health went into decline. He had a heart condition, high blood pressure. He didn't smoke or drink, but he did eat too much. And he did not recover. He was not recovering in North Carolina, and so he wanted to return to Washington.

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

Sanford had an extraordinary experience that day. He was on his way to the Capitol, as usual, but he went first to his dentist's office. He wanted to have a tooth extracted. And they gave him nitrous oxide, laughing gas as it's sometimes called, still used in dentists' offices. But they must have given him too much. The dosage must not have been quite right because he developed heart irregularities, and he did not survive the day. He was a very heavy smoker, small cigars and cigarettes that he chain-smoked. He appeared to be in good health, but he clearly was not. And the experience in the dental chair was simply too much for him.

Mr. ATKINSON: Oh, it--there's so many people who--a number of people had--had--had difficult deaths. William O. Douglas did suffer a good deal because, after he experienced his stroke, the stroke--the--there was no way to alleviate the pain. He tried everything--he tried acupuncture--but nothing seemed to work. And unlike some stroke victims, he--he could not avoid the pain.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Well, Justice Black was unhappy with the way in which some writers had used court papers of other people, most particularly Harold Burton. He was unhappy with regard to the way in which his role in the desegregation case had been reported. Justice Black was strongly opposed to segregation, and anything that suggested otherwise he was very unhappy about. He simply asked that those papers be destroyed. A lot of Black papers, nonetheless, are available because all of the correspondence he--he sent to other people still exist.

But I might add that in response to that question of yours about the most difficult of deaths, it may well be that William Moody died about as difficult death as anybody. I--I don't think very many people would necessarily know who Moody is now, but in his day he was a very prominent individual. He was a close friend of Theodore Roosevelt's. He was the attorney general of the United States. Roosevelt put him on the Supreme Court. And after a very short time, a couple of years, he--he became paralyzed. More recent thinking has concluded that it probably was Lou Gehrig's disease, although there was--there was no satisfactory diagnosis at the time. People talked about arthritis and rheumatism and so on. None of it seemed to be entirely satisfactory as a diagnosis.

Mr. ATKINSON: Yes.

Mr. ATKINSON: He was.

Mr. ATKINSON: Yes, and it irritated him a good deal. R--Frankfurter was a great believer in assimilation, and he had discarded the--the German accent, the Austrian accent of--of his childhood. And after the stroke, that began to reassert itself. He did not go back on the bench. He--he was--he was partially paralyzed as a result of his stroke, had difficulty with speech. And, you know, Justice Frankfurter was a great asker of questions from the bench. That was something he was rather famous for.

Mr. ATKINSON: Well, they had been good friends in their earlier years as professors, when Douglas had been a law professor at Yale and--and Frankfurter at Harvard. But when they got to the Supreme Court, they began to pull apart, and they--they had--they had many differences. And those differences--part of it was a matter of not only substance--they disagreed on many substantive matters--but their style was--tended to be very different. I once got a letter from Justice Douglas, in which he--in response to a question I had put to him about that relationship, he made the point that, in his opinion, Frankfurter's view of the conference was not of an opportunity to proselytize positions rather than to form consensus.

And, clearly, they clashed at--at conference, and at one point Douglas suggested to Earl Warren that he, Douglas, perhaps shouldn't attend conference anymore. He said he was afraid he was going to make Justice Frankfurter ill because Justice Frankfurter got so excited at conference. It is true that, as time went by, they--they simply could not get along on a personal level.

Mr. ATKINSON: W--it has varied from time to time. During the Civil War it was as high as--as 10, as I recall.

Mr. ATKINSON: It has. It has sometimes gone down to a smaller number, seven.

Mr. ATKINSON: Well, Edward Douglass White was moved to the chief justiceship by President Taft. And--and Harlan Stone--Harlan Fiske Stone, who was...

Mr. ATKINSON: Moved--he was two. And then--then William Rehnquist, that would be three. I believe that's it.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Well, he left the court in order to run for the presidency against Woodrow Wilson in 1916, but then Herbert Hoover put him back on the court as--as chief justice. He presided during the 1930s, following Taft. And he had been on Wall Street at the time of the appointment; previously had been secretary of state, Coolidge--Harding. And he--it may have surprised President Hoover that he accepted the appointment because it meant that his son's career in the Department of Justice was ended. But the old gentleman accepted the chief justiceship immediately.

Mr. ATKINSON: Well, he left the court in good health. He just decided it had been long enough, and he did some work thereafter on the courts of appeals--Court of Appeal for the District of Columbia, until his memory began to become increasingly uncertain, which--which was a problem for him later in life.

Mr. ATKINSON: Well, Minton--Minton did feel that way. One of his law clerks thought the justice had overreacted. Minton was a, as his son said--and his son was a doctor--a cardiac case, really, while he was on the court. He was--he had suffered a heart attack, a serious heart attack, earlier. And when he went on the court, he did not have the energy that had made him such a force earlier in the United States Senate. He'd become the Senate whip in just one term and had moved forward in the Senate more rapidly than anyone in this century other than Lyndon Johnson.

But Minton--Minton was--was not--was not a well man during his years on the Supreme Court. He sometimes is listed as a failure by those who have studied the court. I think that's a mistake. I don't believe that he was a failure. His clerks--one clerk remembered him as still smart and sharp. He--he did his work. Things were on time. But he was not the same person that he was. Still, the picture in the book, I think, is representative of him in many ways. He's an ebullient figure, strong personality, and he was the one person, while he was on the court, who was really liked by all of the other people. Everybody felt comfortable with him. He was very personable. Minton was an easy person to talk to.

Mr. ATKINSON: Oh, the--the longest w--would be Taney, I think.

Mr. ATKINSON: John Marshall. John Marshall.

Mr. ATKINSON: Marshall--very close. They both had long tenures. I believe it would be Marshall.

Mr. ATKINSON: William O. Douglas had the longest tenure.

Mr. ATKINSON: I don't know what the overall average would be. The--some tenures have been very short, and some--some--some--many of them in the 20-some years. I've not seen--I've not seen an average overall. I do have, for each of the periods that I examine in the book, the average age people were when they left at any given time.

Mr. ATKINSON: Well, it was controversial in the sense that reporters had some difficulty finding out what the situation was all about, and that perhaps relates to one of my suggestions for reform. I do believe that the justices, I do believe the court needs to be more forthcoming about their--their medical histories, more--more forthcoming about medical problems that may exist on the court.

Mr. ATKINSON: Well, you can stay--stay on the court as long as--as long as you--as long as you wish.

Mr. ATKINSON: Well, if one meets the requirements of the Retirement Act, and one is age 70--see, there are two reasons--two--two--two reasons that are sufficient for retirement: age and disability. So if one is age 70, with 10 years of experience, or age 65 with 15 years of experience, or if the chief justice agrees there is evidence of disability--and only one person has ever left the court for reasons of disability, and that was Charles Whittaker.

Mr. ATKINSON: Yes. He was a very active litigator after he left the court.

Mr. ATKINSON: Oh, yes.

Mr. ATKINSON: Well--well, it may have. He was very successful as a--as a lawyer, but after one retires from the court, if one doesn't--if--if one resigns rather than retires, one can go back into the practice of law if one chooses. For example, Justice Whittaker first--Justice Whittaker first retired, then he resigned in order to go to work for General Motors.

Mr. ATKINSON: Well, I think there are some reforms that would improve the--the status quo.

Mr. ATKINSON: Yes.

Mr. ATKINSON: I--I--I am, although I--I don't advocate in the book that--that we pass a constitutional amendment requiring that justices leave at a certain age. Lewis Powell, when he left the court, suggested it might be a good idea to require justices to leave at age 75. And from time to time those suggestions have been made. In the early 1950s, Owen Roberts, who left the court in a state of considerable dissatisfaction, very unhappy with some other people on the bench when he left, he gave testimony before the Senate to the effect that he thought there should be a constitutional amendment that required justices to leave. He didn't care what the--wh--what age might be selected, 70, 75, whatever Congress thought best.

But he thought it should be done because it would discourage people clinging to power long after they had lost the ability to perform at their peak, at their very best. And, secondly, he thought byrequiring these retirements, it would permit presidents to make appointments. Jimmy Carter, for example, didn't even have an opportunity to make an appointment. Franklin Roosevelt made no appointments during his first term. And Justice Roberts thought that this would--this would encourage turnover and make it less likely.

Mr. ATKINSON: Well, Franklin Roosevelt had a good many appointments because there was such a--such a considerable change.

Mr. ATKINSON: Well, some didn't. Jimmy Carter is the one who comes to mind.

Mr. ATKINSON: I grew up in Red Oak, Iowa, which is in southwestern Iowa.

Mr. ATKINSON: I went to the University of Iowa as an undergraduate, went to law school at Iowa as well and--and then--then did doctoral work at the University of Iowa--political science department.

Mr. ATKINSON: In political science.

Mr. ATKINSON: I went to law school before I went to graduate school, and having gone to law school, I--I was primarily interested in constitutional matters and--and so continued on in graduate school and enjoyed that work.

Mr. ATKINSON: This is my first book. I've done a certain amount of law review writing articles, but this is my first book on--on--on a matter.

Mr. ATKINSON: Well, from a number of sources. Biographies, I think primarily. Newspapers--used--used newspaper sources when available, checked all of those, diaries, memoirs. So many sources can be--can be looked to for this sort of materials.

Mr. ATKINSON: Well, I--I--the court is a fascinating institution, and I spend most of my time studying the court. The--but I--I--I think--I think that some reforms would improve the status quo. I--I think there is, at present, too much reliance on the--on the law clerks, for example.

Mr. ATKINSON: Horace Gray, early in the century, retained someone who...

Mr. ATKINSON: Yes--and--and these persons--one person as a--as a clerk. And the number of people who have these positions has grown in recent years.

Mr. ATKINSON: They've got four, and the chief justice more.

Mr. ATKINSON: Yes.

Mr. ATKINSON: Well, they had--no, they had--they had a room where they met, in addition to the courtroom, and it was a very unhealthy place, particularly before 1860. And I found comments by people who were familiar with the situation in those years--there was no proper ventilation. The rooms were--were either too cold or too hot, filled with smoke--very disagreeable and very unhealthy.

Mr. ATKINSON: Thank you for asking me.