Thurgood Marshall and the 1991 Supreme Court Vacancy
Thurgood Marshall: first African American appointed to the U.S. Supreme Court.
He announced retirement to President George H. W. Bush, citing his advancing medical condition; retirement described as rare, with a vacancy expected to be filled by a qualified successor.
He was approaching age 83; his own words reflected the strain: I am old, I’m getting older and coming apart.
Marshall’s background:
Defender of the Constitution; former civil rights activist.
Leader of the NAACP; chief legal strategist for the NAACP Legal Defense Fund.
Judge on the U.S. Court of Appeals for the Second Circuit.
Solicitor General of the United States.
Associate justice on the Supreme Court.
Rapid professional advancement under two Democratic administrations in the 1960s.
JFK appointed him to the Court of Appeals; faced objections from RFK as a senator.
The political journey around his appointment:
LBJ convinced Marshall to give up his judgeship and the security of lifetime tenure to become Solicitor General.
Marshall’s appointment was seen as broadening constitutional interpretation to widen freedom in America; affiliation with affirmative action as a formalized political concept in the era.
Marshall’s appointment to the Court in 1967 held the seat for 24 years.
His retirement was surprising to like-minded liberals; there was a belief he would serve until a ideologically suitable president named his successor.
Hostility and geopolitics around the Court:
Marshall faced hostility in 1970; Nixon was eager to appoint a judge of his own.
Marshall reportedly told clerks that if he were to die during the Reagan administration they should prop him up and write his opinions; this anecdote illustrates the intense symbolic importance of a Justice’s legacy and the political theater around vacancies.
Why Marshall retired when he did (perspective from Eben Mogren, a former clerk):
The ideological center of the Court had shifted; by the late 1980s and early 1990s, only one true liberal remained able to prevail in privacy and civil rights cases.
Marshall could no longer prevail in those domains and began to feel isolated and uncomfortable on the Court.
His final opinion, Payne v. Tennessee, is cited as emblematic of the changing balance and approach to civil liberties.
Payen v. Tennessee and the Court’s decision climate
Payne v. Tennessee dealt with admissibility of victim impact statements in capital trials.
A provocative quotation associated with this period: power, not reasons, is the new currency of the Court’s decision making.
The decision signaled a broader pattern: essential civil liberties protections under the Bill of Rights and the Fourteenth Amendment may be reconsidered within the Court’s evolving interpretive framework.
This climate raises questions about vacancy dynamics and retirement incentives:
What is the frequency of vacancies over time?
How are vacancies distributed across presidential administrations?
What are the pathways by which vacancies emerge (death, retirement, elevation, etc.)?
Why do justices retire, and what external actors influence those decisions (president, Congress, interest groups)?
The central idea: a president can attempt to appoint the most capable, most admired, or most ideologically aligned jurist, but vacancy is a prerequisite for a nomination.
The Frequency and Distribution of Supreme Court Vacancies (overview)
Up to 2006, there have been 124 vacancies on the Supreme Court, averaging nearly one vacancy every two years.
Deaths in office by period:
1789–1900: 32 deaths in office.
1901–2006: 17 deaths.
Between Eisenhower’s era (1953) and the end of George W. Bush’s presidency, there were about 25 vacancies, reflecting longer-lived judges and better medical care.
Implications for nominations:
Increased controversy surrounding modern nominations.
Debates about depoliticizing the process and ensuring the Court reflects the majority’s will while preserving judicial independence.
Frequent turnover could bring fresh energy and vigor but also risk destabilizing long-standing legal traditions.
Distribution across presidents is not uniform; vacancies are largely unsystematic in timing and do not show a simple partisan bias.
Notable extremes in presidential histories:
George Washington had the most vacancies (11).
Franklin D. Roosevelt had 9 nominees confirmed.
William Howard Taft had 6 vacancies fully confirmed.
Timing and structure of vacancies across presidencies
From 1789 to 1908: 10 presidents revised only one vacancy; 11 presidents were granted two vacancies.
Carter is noted as particularly unlucky in the strategic retirement of Justice Porter Stewart during his term.
Timing patterns:
Some presidents enjoyed prompt vacancies soon after taking office (early action) – e.g., Washington appointed six in his first term.
Others experienced delays or waited through part or all of their term (e.g., FDR and GW Bush waited through much of their first term to appoint a justice).
Natural courts concept:
The longest uninterrupted period with the same number of justices without a membership change is called a natural court.
The longest such period was a 9-member natural court lasting 11 years; another notable case is the 1812–1823 7-member court lasting 11 years and 44 days.
The 11-year, 44-day natural court is unlikely to recur due to modern vacancies and confirmations.
Vacancies are a focal point for scholars because they can renew the Court’s intellectual energy and potentially alter its legal traditions.
Creating Supreme Court Vacancies: Modes of departure
Voluntary departures (the most common route):
Retirement is the most frequent mode of voluntary departure.
Intergenerational explanation: retirements allow younger, more energetic justices to replace older ones.
Motivators for retirement include political, economic, and personal reasons; ideological compatibility with the current Court is a major factor.
Political pressure from outside the Court can push retirement decisions, including presidential leverage, impeachment threats, and organized group lobbying.
Historical example: JFK persuaded moderate Justice Felix Frankfurter to retire due to health concerns and to replace him with Arthur Goldberg (more liberal).
Marshall resisted Carter’s retirement pressure in the late 1970s.
A case study in political maneuvering: Tom Clark, LBJ and retirement ethics
Johnson persuaded Justice Tom Clark to retire by offering to nominate his son, William Ramsey Clark, as attorney general.
Rationale: the attorney general heads the DOJ and argues cases before the Supreme Court; a potential ethical conflict would arise if the son participated in cases Clark ruled on, so retirement was pursued.
Clark remained as a federal judge after retirement under a 1937 law allowing former Supreme Court justices to stay on as federal judges.
The Court had several certiorari cases involving Clark, with mixed outcomes (3 cases heard, 2 reversals).
This episode illustrates how political leverage can be used to steer retirement and composition, and how the judiciary complexifies ethical boundaries around familial connections to the bench.
Impeachment and political pressure as tools of court shaping
Only one Justice has been impeached in U.S. history: Samuel Chase.
There have been multiple threats against judges, particularly during Nixon’s presidency with Justice Douglas, who was ill and urged to retire; Nixon aimed to replace him with a more conservative justice.
Allegations were that Douglas accepted funds from a foundation in exchange for favorable rulings, though evidence and interpretations vary; some claim Warren Burger also had similar arrangements.
Nixon’s impeachment attempts were backed by DOJ and FBI efforts, including wiretap evidence, but ultimately did not remove Douglas.
Gerald Ford continued to pursue impeachment steps while in office; Douglas ultimately retired in 1975, enabling Ford to nominate Stevens later.
Strategic retirement in practice: O'Connor and the Reagan era context
Sandra Day O’Connor, a moderate conservative, held her seat from 1981 to 2006 (25 years).
Her retirement timing was strategic: she remained on the Court into 2005, in part to influence the next appointment while Bush was president; she left before Bush could appoint her successor, allowing a later replacement by Alito in 2006.
The Florida recount in 2000 and shifting political landscapes influenced retirement calculus; O’Connor’s delay helped shape the Court’s eventual composition.
Research suggests that about 75% of voluntary retirements occurred for strategic reasons; however, this figure is debated and not universally conclusive.
Economic and pension incentives shaping retirement
Economic factors: financial considerations historically influenced whether justices remained on the bench or retired.
Before 1869, federal judges lacked retirement benefits, contributing to longer tenures and a state of financial vulnerability for some justices.
Modern comparatives show judicial salaries are often lower than those of law school deans, large-firm associates, and Fortune 500 counsel; even Supreme Court clerks entering private practice can earn substantial salaries, creating financial incentives for retirement and post-service opportunities.
Notable case: Justice Grier, aged 75, faced physical weakness in continuing duties; his retirement followed the 1869 pension act, which provided lifetime salary for those aged 70 or older with at least 10 years of service.
The Pension Acts of 1954 and 1984 improved benefits; the 1984 act lowered the eligibility age to 65 with 15 years of service; the Rule of 80 remains a cornerstone of retirement benefits and planning for many justices.
The Rule of 80: if a justice’s age plus years of service total 80 or more, retirement benefits can be collected; this rule has heavily influenced retirement timing.
Personal and family factors in retirement decisions
Old age and increasing caseloads: notable exemplars include Holmes, Brandeis, Hughes, Douglas, Brennan, and Marshall; rising caseloads and case filings relative to earlier eras (e.g., 1941: 1302 cases; 2001: 9174 cases; a 605% increase) push toward retirement when workload becomes untenable.
Family considerations: long careers can lead to family-related retirement decisions.
Resignation versus retirement:
Retirement implies end-of-career decision based on personal judgment about workload and impact.
Resignation is a voluntary but premature departure often tied to external factors like ethics investigations, political pressure, or opportunities in non-legal roles.
Historical examples show differences in how and why resignations occur across the 19th and 20th centuries; some presidents and party dynamics played a role in triggering resignations.
Elevation as a departure mechanism:
Promoting an associate to chief justice creates a secondary vacancy.
Only a minority of vacancies (roughly three) have occurred due to elevation rather than direct retirement or death.
Involuntary departures: death and disability
Death in office has historically been the most frequent cause of departure from the bench, though its relative frequency has declined with longer tenures and health care improvements.
Notable examples of disability-driven or abrupt departures include mid-career incapacities or sudden health events, which historically triggered retirement or succession planning.
The record reflects a balance of voluntary retirements and involuntary exits, with the former playing an increasingly prominent role in modern era jurisprudence.
Recess appointments and legislative action
Recess appointments allow the President to fill vacancies during Senate recesses; the appointee serves until the Senate confirms or rejects the nomination in the next session.
If rejected, a new nominee is brought forward; recess appointees serve without pay until confirmation.
Historic instances involving recess appointments include Chief Justice Stone, Earl Warren, and others; in recent times, examples include ambassadors or roles assigned by presidents while awaiting Senate action (eg, Weld as ambassador in 1997; John Bolton appointment to the UN in 2005 following opposition to his confirmation).
Legislation creating new vacancies tends to be controversial and often benefits the president’s party, justified by arguments that a new justice would alleviate caseload pressures and improve overall decision-making on the Court.
Real-world implications and takeaways
Vacancies on the Supreme Court are not purely legal events; they are deeply political acts that shape jurisprudence and constitutional interpretation for decades.
Strategic retirements and the timing of nominations influence the Court’s ideological balance and its approach to civil liberties, privacy, and criminal procedure.
The interaction between the executive, legislative, and judiciary branches—through retirements, appointments, impeachment threats, and recess actions—constitutes a key dynamic in American constitutional governance.
Understanding the history of vacancies helps explain contemporary debates about court reform, nomination processes, and the appropriate role of politics in judicial life.