Recently my aunt passed away at age 74 years, 77 days. It didn't take long to confirm that she was older than 26 US Presidents got (counting Grover Cleveland twice of course). The last she passed was Millard Fillmore. She once made a crude remark about his birthplace. Next ahead was James Buchanan, but 3 years off. Those 2 ran against each other in 1856. How strange it is that they're still linked in that strange category after 146 years. I wrote about that election long ago, before Carter broke Hoover's record for longest Presidential retirement. You see Carter, Hoover, Ford, John Adams and Bush Sr. had the longest post-presidencies, and every one of them wanted their post-presidencies to be 4 years shorter. Next on the list at 21 years are Fillmore and Van Buren. Those 2 wanted much shorter Post-presidencies. Van Buren tried to return to the Presidency in 1848 and Fillmore in 1856. If they had succeeded Van Buren's retirement would have been only 9 years and Fillmore's 13. Then I noticed that Clinton just broke Madison's record in the category of Presidents who didn't want another term.
With more spare time lately I started thinking about how many Supreme Court Justices died younger than she. The latest to leave the court of course was my favorite Potter Stewart. I was unhappy he retired at 65 in 1981, but perhaps he knew it would be a short retirement. He passed at 70 in 1985. I keep forgetting exactly when Abe Fortas died or was born. It turns out she beat him too: 71 in 1982. Of course I knew John Harlan II retired in 1971, then died 3 months later, aged 72. It's much harder to remember Charles Whitaker. He left after a nervous breakdown in 1962 and died in 1973, also 72. Then we get to the sudden deaths. Sherman Minton left in bad health in 1956, but how long did he live? He was over 74 but not much older. Robert Jackson, Frank Murphy, Wiley Rutledge all died young, but I wasn't sure about Fred Vinson. He was younger too. I knew that Chief Justice Harlan Fiske Stone lived 1872-1946 and died a few months after her birth. That would be some irony. When I checked the exact dates I first read it backwards: April and October. It turns out he was born in October and died in April, 73 years, 6 months. It looked like he might be the last one she passed, but there was another, a man I thought was a little older: Pierce Butler 73 years, 8 months. He died in 1939, appointed in 1922. He died on the job, but some justices retired when they got sick. I looked them up one by one and came up with some nuggets on the way. Both of Chester Alan Arthur's appointees died at 73. Wilson was the first to have all 3 pass age 74. Nixon alone got all 4 past that age. Kennedy was the first to go 2 for 2, now joined by Clinton. Jefferson struck out: 0 for 3. After it looked like a certain pair was the correct answer, I looked closer and then, as an afterthought, checked the exact sequence. It was William R. Day just days ahead of her and Pierce Butler 6 months behind. In the muddle of 3 appointments in 1922 I never thought about who followed whom. Butler replaced Day!
This too is an ironic quirk that has now held up 81 years with no end in sight. As for my aunt, she got older than 45 justices: 7 of Washington's 10: Blair, Wilson, Iredell, Rutledge, Patterson, Samuel Chase, Ellsworth 2 of John Adams 3: Bushrod Washington, Moore All 3 of Jefferson's: William Johnson, Livingston, Todd 1 of Madison's 2: Storey John Quincy Adams' only appointee Trimble 2 of Jackson's 6: Baldwin and Barbour 16 1 of Van Buren's pair: John McKinley 1 of Polk's 2: Woodbury Fillmore's man Curtis 2 of Lincoln's 5: Davis and Salmon P. Chase 1 of Grant's quartet: Waite 1 of Hayes' 2: Woods Garfield's man Matthews 24 Both of Arthur's men: Blatchford and Gray 1 of Cleveland's first pair: Lucius Lamar 1 of Harrison's 4: Howell Jackson 1 of Cleveland's second pair: Peckham 1 of Teddy Roosevelt's trio : Moody 30 2 of Taft's 5: Lurton and James Lamar 3 of Harding's 4 : Pierce Butler, Sanford and Taft 35 Coolidge's lone pick Stone 1 of Hoover's picks: Cardozo 3 of FDR's 8: Murphy, Wiley Rutledge, Robert Jackson 40 1 of Truman's 4: Vinson 3 of Ike's 5: John Harlan II, Whitaker and Stewart LBJ's man Fortas.
Of course I can't restrain myself from a long essay about the Supreme Court from 1903-1940, as only I can tell it. It starts with the retirement of Justice George Shiras in 1903. He was 71 and destined to live until 1924, dying the year after his replacement Day. You can't blame him for retiring relatively young though. Shiras joined the court in 1891, the third justice appointed by Benjamin Harrison. In just one term Harrison got to appoint 4 justices, all after a death. One of his appointees expired just 2 years later, the 7th death on the court in 7 years. In 1902 Justice Horace Gray expired at 73. Though that made Shiras fifth in seniority he was not likely to move up fast. John Harlan I was only 70 and healthy after 26 years on the court. Chief Justice Melville Fuller wasn't going anywhere. The other 2 Harrison appointees were younger than he. He might stay 10 more years and never be important. There was no political reason to stay. Republicans had a 6-3 majority so his vote was usually superfluous and he never got to write big decisions. He was Republican. President Theodore Roosevelt was Republican. The balance was not soon to change. Best of all, when Gray Died Roosevelt replaced him with Oliver Wendell Holmes, a legendary jurist on the Massachusetts Supreme Court. Shiras could retire with confidence his replacement would be a worthy man. Teddy first offered the job to William Howard Taft. Taft was fully able, a judge at age 29. He became Solicitor General under Harrison and Cleveland kept him on the job. Just 46 at the time, he could have had a long career. However Taft rejected the offer. He considered his job at the time: Governor of the Philippines, to be more essential. Besides, Taft wanted to be Chief. If he served Roosevelt well that seat might be available before Roosevelt left office and he might get it. At the time, no Associate Justice had ever been promoted to Chief. Roosevelt next chose William R. Day. Day was also very talented, a former Secretary of State under McKinley. He was 54 and a loyal Republican. The next vacancy came in 1905. Henry Brown, Harrison's second pick in 1890, called it quits after 15 years, age 69. As with Shiras, he had nothing to gain by staying on the job a few more years. Brown lived 8 years in retirement. To replace him TR chose a man much like himself. William Moody was a robust New Yorker, just 52 years old. As Roosevelt left office he was proud of his 3 picks. He hoped they would all last a long time and have a combined career better than the other Presidents with exactly 3 appointees: John Adams and Jefferson. What could possibly go wrong? In just 2 years Moody contracted rheumatism. He went home to rest, but by the start of 1910 had no hope to recover. By then Taft was President. In his first year, Taft got an unexpected vacancy. Rufus Peckham was the last of Cleveland's appointees in 1896. He died suddenly at 71. Taft could now increase the Republican majority to 7-2 and set up a judicial legacy. Taft surprised everyone. He picked Horace Lurton. Lurton was a Democrat, a southern Democrat, a former Confederate soldier and 65 years old. Obviously Taft wanted a huge victory in 1912 and thought this would add southern votes and Democratic votes. Lurton was approved and became the oldest Associate Justice ever to join the court. He still holds that distinction. Of course at that age, he might just leave the court during Taft's second term. Taft was always thinking far ahead. Taft had no hesitation about whom to pick next. Charles Evans Hughes was Governor of New York, just 48 years old and universally respected. He might stay on the court for decades and become a legend. 1910 proved to be a year like none before. Moody's retirement was one of 3 Supreme Court vacancies that year. The other 2 were Harrison's remaining selection Joseph Bradley and Chief Justice Melville Fuller. Normally a President rejoices when the Chief Justice seat becomes vacant, but for Taft it was a special problem. Taft still wanted to be Chief someday. He couldn't appoint himself. One excellent option would be to elevate Hughes. No one would complain about Hughes moving up after just months on the court. The trouble was that by the time Hughes was ready to leave office Taft would be dead. In fact, almost anyone Taft selected would stay a long time, too long for Taft to be a suitable replacement. There was one option. Edward Douglass White was Cleveland's last remaining associate Justice. White was on the court since 1894, 66, Catholic and a Democrat. He might just retire or die at the right time for Taft to take his place, so Taft elevated him to the top. To replace White as associate and Bradley Taft now wanted yes men who would agree with him about everything when he became Chief. He picked Mahlon Pitney and James Lamar, both about his age and with no ambitions. The next year Harlan died at 78 and Taft replaced him with Willis Van Devanter, 52, another easy vote for any conservative issue. With the court 7-2 Republican and the Democrats among the oldest Taft saw a legacy more promising than any outgoing President since Andrew Jackson. That was only his first term too. No President before him had filled 5 vacancies in just 4 years. (Washington picked the original justices and Lincoln got to 5 by adding a seat.) What could go wrong? TR turned against Taft and he finished third in the 1912 election. Democrat Woodrow Wilson became President, so when Lurton died in 1914 it was he who chose his replacement. Luckily for Republicans of that era, Wilson chose his Attorney General James McReynolds and McReynolds turned out to be a flaming conservative. Then in 1915 Lamar died suddenly at 59. Wilson was now worried about reelection, so he made a move to secure support in the Jewish community. He appointed Louis Brandeis, the first ever Jewish Justice. Some objected but Brandeis was a year older than Lamar so he might not last long. He joined the court early in 1916. At the 1916 Republican Convention they had a great deadlock. Some still wanted Roosevelt. A few wanted Taft. No one else could gather enough support, so they chose the default option for both parties for President and VP since the years they were founded: WHEN IN DOUBT NOMINATE A NEW YORKER. The one they chose was the best: Charles Evans Hughes. Of course he had to leave the court for that and that gave Wilson a third pick. He chose John Clarke, 59 and unobjectionable. Wilson won a close race thanks to rural areas of western states. Wilson's second term marked the third time in history that a Presidential term passed without a new vacancy. The first was 100 years earlier when there were only 7 Justices. The second was Pierce's term, but he filled a leftover opening. Despite the continuity, this was a contentious time on the court and Day might be the biggest snake in that garden. Day was 61 when the Chief Justiceship became open and probably thought it was he who should have been promoted. Since the 3 Wilson openings were all replacing Taft appointees, his position did not change. White was ahead of him in seniority as was Joseph McKenna and Holmes. The only way Day could be first in seniority on the winning side would be if all 3 of those men disagreed with him plus no more than one newer justice. That was unlikely. Day got to write few important decisions. There were some cases of consequence: treason, civil rights, free press, child labor. Holmes got most of the big ones no matter which side he fell on. In 1920 the country returned to normalcy and elected Warren G. Harding, a Republican from Ohio. By then White was ailing. He died in the fall of 1921 and Harding had no hesitation replacing him with Taft, age 64.
Then in 1922 there were 3 vacancies, all by retirement. Pitney had a stroke and retired, living 2 more years before his death at 66. Clarke, tired of arguing with Brandeis about what a true liberal is, left to pursue world peace. He lived 23 years, dying shortly before the end of World War II. The other who left was William R. Day. Day was getting nowhere. His vote was still superfluous. McKenna and Holmes refused to retire and the Chief is always first for court purposes. He lived less than a year into retirement, dying at 74 years, 81 days. Harding was a newspaper man not a lawyer. He had no judicial philosophy and minimal political philosophy. He asked Taft who he wanted and the Chief was joined by 3 new yes men. Ed Sanford of Ohio occupied the dunce seat. He became so synchronized to Taft they not only voted together again and again but died the same day in 1930. George Sutherland, 60, was also a loyal conservative vote. To replace Day Harding chose Pierce Butler. Butler was 56, born in Minnesota, an expert on railroad law and a Catholic. Railroad law was still important and the laws were relevant to America's developing trucking and air freight businesses. Some opposed him because he was Catholic, notably the famous bigot Senator Walter George of Georgia. Most however agreed there should be one Catholic on the court at all times, and this ended the brief intermission following White's death. Joining Taft's last remaining appointee Van Devanter, that made a winning combination almost every time. The Taft court had few arguments. Harding died, and when McKenna finally retired in 1925 the new President, Calvin Coolidge, did not ask Taft who he wanted. He appointed his college buddy Harlan Stone. Stone was a moderate Republican, a less certain vote, but Brandeis often stood alone against the conservative majority. In early 1930 Taft learned he was dying and retired. The day he died, so did Sanford, still on the court, age 65. The new President was Herbert Hoover. For Chief he made another obvious choice: Hughes. Hughes was 68 as he returned to the court as Chief. That's still oldest ever and might always be so. To replace Sanford Hoover chose Owen J. Roberts, another man suitable for the dunce seat. I doubt anyone ever referred to Taft's associates as yes men, but after Sanford was gone someone came up with a more diplomatic title: the 4 horsemen of conservatism. Holmes was welcoming his fourth Chief. There's always an asterisk, but only Stephen Field truly preceded him in that category. He was the oldest Justice ever by then and going senile. Hughes was also reunited with Van Devanter, McReynolds and Brandeis. Old men get along. By the start of 1932 Holmes was 90 and no longer able to function. His colleagues had to persuade him to retire at last. By then everyone knew Hoover was going to lose the 1932 election, so a group of Senators approached him and told him the only nominee they would accept would be Benjamin Cardozo. Cardozo was already over 60, a Portuguese Jew, and famous for his long service on the New York state courts. He was also very liberal, so at last Brandeis had a soul mate. Franklin Roosevelt's first term became the fourth time ever with no Supreme Court vacancies. Stone turned 60 in 1932. Hughes, McReynolds and Sutherland all turned 70 that same year. and Roberts turned 60 in 1935. Then Butler turned 70 in 1936, Brandeis 80. It was the oldest court in history and still the only time there were 6 justices 70 or older. Those were not quiet years for the court though. In an effort to end the depression Roosevelt and the Democratic Congress passed law after law, with minimal regard for the Constitution. The court struck down the National Recovery Act and other new deal policies. They had sound reasons, but most attributed the decisions to being out of touch with modern realities, the severity of the depression, in general old age. Growing hate of Roosevelt was a factor too. The feeling was mutual. After winning the 1936 election 46 states to 2 FDR turned his attention to the court. He asked Congress to allow him to add one new justice for each justice over 70 who refused to die or retire. That could swell the court to 15, then perhaps by attrition back to 9. Either way, the votes of the old conservatives would be nullified and eventually Roosevelt men would have an automatic majority. The court panicked and allowed a controversial law to go through. What Roosevelt didn't know was that Van Devanter wanted to retire for years but didn't dare. He feared the depression and needed more money to feel safe. Congress did not allow Roosevelt to win this battle, but they did increase the pension and created “senior status” so old judges could still review a few cases and feel like they're doing something. Van Devanter retired that summer. To replace him FDR picked Congressman Hugo Black, a southern Democrat who was not racist. He had radical views on the first amendment and an aggressive agenda to change the country, but his job on the court was to act as a politician, negotiating compromises. The liberals were still in the minority 6-3. Next Cardozo died. That was a bonus. To replace him FDR picked Stanley Reid, a quiet loyal vote. He would never overshadow Black, but never go against his lead either. Liberal replaced liberal though, so the balance remained 6-3. In 1938 Sutherland retired at 76. Roosevelt had no plans for a third term, so this might be his last selection. What if he could find a justice that would fill a niche on the court that a sitting justice had been filling for a long time, a man likely to vote and write decisions just like another elderly justice? Maybe that old justice would retire, content that his legacy was extended another generation, giving Roosevelt a fourth pick. He found such a man. Felix Frankfurter was a Jewish college professor born in Austria. By nominating him at the start of 1939 he was symbolically slapping Adolf Hitler in the face. Frankfurter's role on the court was to present his arguments as a professor would, offering both sides then making a persuasive case that his reasoning was best. It worked as he planned. Brandeis greeted Frankfurter and promptly announced his retirement. For his fourth and likely final opening FDR looked far ahead. He picked flaming young liberal William O. Douglass, 40 years old, intending to remain for life and extend Roosevelt's legacy as far into the future as possible. He did just that, breaking the record for endurance until medical problems forced him to retire in 1975. Once again, liberal was replacing liberal, so FDR's men were still down 5-4. It looked like it would stay that way and the 1940 election would decide the long-term future of the court. Then Butler died suddenly at 73 years, 8 months. It didn't matter much who Roosevelt picked next. Any loyal Democrat would be a safe fifth vote. He needed a Catholic to keep that constituency represented, so he found such a man. Frank Murphy was not yet 50, had no major plans and could be counted on as a loyal but quiet vote. With hotheads and a younger man ahead of him in seniority he might stay over 25 years with no great achievements. He didn't. The poor man died at 59. No Justice has died so young since.
