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Fall 2011 University School of Law. Chad Professor of Public Affairs at tion states that all federal judges “shall hold their offices should release the reins of power. lack of institutional norms regarding when chief justices additional troubling aspect of lifetime tenure, namely, the Placed into historical context, the episode illuminates an tion that he loved. There is, however, another dimension. individual who gave his last full measure to an institu- T the Supreme Court, and their proposals for reform. on the administrative role of the Chief Justice of the , whichauthors’ is unique account among of Chiefmembersis is Justice anof excerpt William from anath essay forthcoming in the T S ll T O through an adversarial process known as returned to the PTO after issuance and are reevaluated used to achieve the same goal. Some issued patents are other competitor. public good that the challenger would share with every are skeptical, pointing out that invalidating patents is a forum rather than settling privately. Some commentators the validity of a patent to challenge that patent in a public willingness of third parties with good information about patent reform legislation. Office.” A post-grant opposition system is part of proposedtors can share critical information directly with the Patentexpensive by creating a mechanism by which competi- warrant serious review, and it also makes that reviewthis less information, the PTO can better “identify patentsinformation that in the hands of competitors.” Armed with tive because it harnesses private information; this time, industry. their threatens that patent a invalidate to looking competitors h u i ldfather andPeppers Article III, Section 1 of the United States Constitu- Patent law already has mechanisms that could be The success of post-grant opposition depends on the Like tiered review, “post-grant opposition is attrac- preme D illness, are undoubtedly a poignant story of an his decision not to retire in the face of a terminal he final illness of Chief Justice Rehnquist, and e C D o o urt

U dfather Chad s R Part: o M anoke College and currently a visiting Professor of Law at Washington & Lee M . O .

l O l dfather is Professor of Law at inter partes C H h .

R ief Justices and the e hnquist’s death in office and concludes before their focus Marquette T o dd C. Peppers is the shield. Since the ratification of the Constitution, only one whims of the majority. It has proven to be an effective ment and to protect minority rights from the momentary tion from overreaching by the other branches of govern- are to fulfill the critical role of protecting the Constitu- Alexander in No. 78, if federal judges ment. Such judicial independence is necessary, explains judges can only be removed from office by impeach- diminished during their continuance in office.” In short, for their services, a compensation, which shall not be during good behaviour, and shall, at stated times, receive that we might hope. systemic reasons to think that the PTO will never be all ing innovative strides in that direction. But there may be it can be improved, and the current administration is tak- of validity. that survive those challenges with a strong presumption perhaps the timing of challenges, and to imbue patents is appropriate to place some limits on the number and an endless set of challenges. To solve that problem, it at the apple, allowing them to inundate patentees with lated systems is that we give challengers too many bites in initial examination. patents fare worse in reexamination than applications do amination, and the result has been that in recent years to submit an initial explanation of the reasons for reex- reexamination, while not truly adversarial, allows the filer deference to that determination. Even traditional ence is appropriate, though today the law gives complete reexamination. This is an evaluation to which some defer- Can the patent office be fixed? Well, maybe. Certainly The biggest risk with post-grant opposition and re-

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M R eview a rquette University. H . T e h nry e excerpt picks up after the U H . * * * and n ited T r udye S H t . Fowler ates ex parte chief justice to die on the bench. (1801 (1969 to 1986). Historically, the norm has been for the to 1941), (1953 to 1969), and Warren Burger justice from 1789 to 1795), (1930 the Supreme Court while in good health: (chief four of the last sixteen chief justices have retired from to chief justices. According to Atkinson’s research, only dangers of infirmity are more likely to arise with respect a close examination of the history suggests that the with the additional cost of judicial infirmity. Moreover, offer an important warning that lifetime tenure comes Supreme Court justices “at the end,” and his accounts reluctance to leave the Supreme Court. to associate justices, chief justices show even a greater of an inability to serve. What is more, when compared ciate justice, which increases the potential consequences bears a host of responsibilities beyond those of an asso- greater when it comes to chief justices. The chief justice These concerns about judicial competency should be cal health deteriorated and their mental acuity declined. of justices who remained on the bench as their physi- the United States Supreme Court is filled with examples tence and ability of aging jurists. Indeed, the history of lifetime tenure also raises concerns about the compe- policy preferences for those of duly elected legislators. in turn empowers federal courts to substitute their own that the independence engendered by lifetime tenure strong form of this argument runs ability. Reduced to its essence, the life tenure is a lack of account- federal judiciary resulting from substantial independence of the danger associated with the hearings ever materialized. Justice’s messy personal life), no O. Douglas (mainly due to the ing Associate Justice William hearings regard- Republicans threatened to hold States Senate. While House was acquitted by the United tives in March of 1804, but by the House of Representa- was impeached impeached. Associate Justice Supreme Court justice has been Political scientist David N. Atkinson has documented Yet, as developed in the debates referred to above, Historically, the primary States. John Jay (1745-1829), first Chief Justice of the United E n graving by H a ll, undated. Chase, who had once served as ’s Lincoln’s Abraham as served once had who Chase, alive.” though dead, were I if as feel I pher.Sometimes ci- a than more be to invalid an of thatmuch too am “I written shortly after October Term 1872, Chase wrote never consent to his retiring to private life.” In a letter cluding the politically ambitious Kate Sprague—“will 1872, but a colleague noted that Chase’s daughters—in- “barely able to function” during October Terms 1871 and of 88. A stroke rendered Chief Justice Salmon P. Chase the Court until his death on October 12, 1864, at the age term of the Supreme Court.” Linger he did, remaining on told a friend that he “hope[d] to linger along to the next his fellow justices. Still alive one year later, Roger Taney Taney had a “premonition of death” and said goodbye to clear-headed. Two years before his death, a sickly Roger emaciated, feeble, & dangerously low” but alert and died, friends described the 79-year-old Marshall as “very battle what was likely liver cancer. Shortly before he of John Marshall’s life saw the legendary Chief Justice oping a painful kidney disorder. The last three years resignation to President after devel- known to court insiders. submitted his sustained period of time, and their physical decline was justices suffered from significant health problems over a son were sudden and unexpected. The remaining chief only the deaths of Harlan Fiske Stone and Fred Vin- about his sanity. Senate voted against confirming him based on concerns Of the chief justices who died while on the bench,

© Bettmann/Corbis is evidence to suggest that the only a , there Court, (1795), was ond chief justice of the Supreme health condition. While the sec- the bench while facing a chronic his death and Oliver Ellsworth left problems, resigned shortly before who was battling multiple health Howard Taft (1921 to 1930), of chief justice, while William while still holding the position Vinson (1946 to 1953) all died Stone (1930 to 1941), and Fred (1910 to 1921), Harlan Fiske 1910), 1888), (1888 to 1873), (1874 to 1864), Salmon Chase (1864 to to 1835), Roger Taney (1836 to M arquette Lawyer 39

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Fall 2011 while holding the center chair was broken by Earl War- age of 63. Stone, Fred Vinson, died of a sudden heart attack at the the Supreme Court bench. The man selected to replace fatal cerebral hemorrhage while reading an opinion from heath, Hughes’s successor, Harlan Fiske Stone, suffered a Charles Evans Hughes, would leave the Court in good die approximately one month later. While his successor, tantly resigned his position on February 3, 1930—only to ing the last year of his life, reluc- disease, high blood pressure, insomnia, and anxiety dur- Bolsheviki from getting control.” Plagued with cardiac that he “must stay on the court in order to prevent the less acute and more confused,” Taft wrote to his brother cal decay. Describing himself as “older and slower and years later Taft would be bemoaning his own physi- infirm White would never vacate the center chair, eight While Taft had lamented the fact that the aging and to fulfill his dream of becoming the next chief justice. gallbladder surgery—thus enabling William Howard Taft glass White died after undergoing an obese, 76-year-old Edward Dou- Court ended October Term 1921, administrative work.” had begun to show his age in his ment, for during the last term he “Chief died at just the right mo- Holmes wrote that the 77-year-old , 1910, Justice Oliver Wendell Fuller’s death by heart attack on him to carry out his duties. After other justices made it difficult for declining health and the illness of when the diminutive jurist’s own health until October Term 1909, Fuller remained in fairly good Chief Justice Melville Weston almost placed its hand upon him.” evident to the observer death had der Garland observed that “it was bench Attorney General Alexan- of his last appearances on the spiral for Chief Justice Morrison Waite, and during one died two days later at the age of 65. tion resulted in his banishment to the Supreme Court, secretary and whose treasury transparent political ambi- As noted above, the clear historical pattern of dying Less than a week after the A nervous breakdown in 1885 started a downward R Portrait of U.S. Supreme Court Chief Justice e mick Waite (1816-1888). Photograph ca 1875. might lead to such a differential. Of course, the decision to die in office than associate justices, and what factors consideration of whether chief justices are more likely mit certain conclusions, the patterns nonetheless invite 20th century have died in office. percent of the associate justices who have served in the Day O’Connor and . All in all, fewer than 30 ron White, and . We can now add Sandra Tom Clark, , , Lewis Powell, By- J. Roberts, James Byrnes, Stanley Reed, , Sutherland, , James C. McReynolds, Owen Shiras, John H. Clarke, , George health. In the 20th century, these justices include George ate justices have left the bench while in relatively good trast to the chief justices, a substantial number of associ- and . In addition, and in further con- Harlan II, William O. Douglas, William J. Brennan, Jr., Whittaker, , , John Marshall Holmes, Jr., , Harold Burton, Charles R. Day, , Joseph McKenna, Oliver Wendell clearly had illness after power onto holding justices chief of tradition controversial the reestablish would who Rehnquist, history, William Court Supreme of student avid an be would it Ironically, health. good in ren and Warrenwhile Court the Burger,left both who Although the numbers involved are too small to per- M o rrison

© Bettmann/Corbis Brown, William Moody, William ing , Henry Billings ness or cognitive decline, includ- forced from the bench due to ill- number of associate justices were In contrast, a relatively large Cardozo, and Robert H. Jackson). ham, Joseph R. Lamar, Benjamin mental infirmity (Rufus W. Peck- battling significant physical or justices died on the bench while during which only four associate dramatically in the 20th century, office. But the numbers change ity of associate justices died in In the 19th century, the major- serve despite faltering abilities. they are less likely to continue to tern emerges, and it suggests that justices, a slightly different pat- duties. their form per- to unable them rendered When it comes to the associate William U.S. Supreme Court Chief Justice in the unique role and powers of the chief justice. As ness forces their hand) than retire. The answer may lie more chief justices to die in office (or remain until ill- to partisan maneuvering.” decreasing workload have reduced the departure process century), “generous retirement benefits coupled with a why so many associate justices died in office in the 19th survive without a judicial pension, which would explain with institutional and personal factors” (including how to retirement decisions were once “primarily concerned Supreme Court justices. Ward writes that while justices’ primarily explains the retirement choices of modern the bitter end: there are a host of reasons why the justices hang on to to leave the court is complex. Atkinson suggests that This does not explain, however, the tendency for Political scientist Artemus Ward believes that politics H .

to do; and (8) family pressure to stay in office. can still do the work; (7) not knowing what else belieftheythatstatus;ability;a of (6)loss (5) determinationtostay; (4)sense a ofindispens- cialconsiderations; (2)partyideology;or (3)a leave office for the following reasons: (1) finan- R e hnquist, June 2005. urm Cut utcs o o voluntarily not do justices Court Supreme

© Jonathan Ernst/Reuters/Corbis points in history, it fectively. At various ability to do so ef- serve beyond their that justices will in the likelihood seeming differential responsible for the role that is primarily of the chief-justice be another aspect leave. But it may more reluctant to that its holders are to such an extent the allure of the job which may add to associate justices, possessed by the responsibilities than greater range of encompass a much role has evolved to the chief-justice we explore below, justices in pushing colleagues to retire suggest another felt that he was still capable of performing his duties. Chief Justice’s own press releases demonstrate that he and did not relish the notion of retirement. Finally, the suggests that Rehnquist enjoyed his status as chief justice the Court, and his loneliness at the death of his wife, J. Obermayer’s description of his late friend’s love for ations cannot explain his behavior. Moreover, Herman could have retired at full salary—so monetary consider- successor. Given the Chief Justice’s length of service, he assurance that a Republican president would pick his years in which to retire from the Supreme Court with the reelected to office, and the Chief Justice had several his decision; President George W. Bush had just been ply. Clearly, partisan considerations cannot account for remain in office. The standard explanations do not ap- would grant cert. Douglas would not determine on which cases the Court deciding vote. Similar steps were taken to guarantee that in which ailing and confused Justice Douglas cast the White) to allow him to schedule for reargument cases convinced the other justices (save a protesting Byron followed Taft’s lead and used a similar tactic, when he proximately 50 years later, Chief Justice Warren Burger McKenna—graciously accepted the gentle nudge. Ap- old Oliver Wendell Holmes, Jr., but Holmes—unlike Charles Evans Hughes paid a similar visit to a 90-year- in which McKenna was the deciding vote. Chief Justice themselves had secretly decided to not decide any cases alone in pushing McKenna off the Court. The justices resign. The Chief Justice, however, did not rely upon tact ally McKenna himself) in hopes of persuading him to forced Taft to approach McKenna’s family (and eventu- that the poor quality of Justice McKenna’s work product Justice Joseph McKenna’s dwindling mental acuity, and William Howard Taft felt “great consternation” about power of persuasion at work. He writes that Chief Justice among equals, his principal power is that of persuasion.” Although the chief justice is primus inter pares, or first when a justice is reluctant to leave or determined to stay. ing,” observes Atkinson. “They have been least successful colleagues, which has all too frequently proved to be try- borne the principal burden of dealing with incapacitated gested retirement. “The chief justices have traditionally the Court—who has approached ailing justices and sug- has been the chief justice—often with the consensus of Yet Atkinson’s comments about the role of the chief Consider now Chief Justice Rehnquist’s decision to Atkinson provides three examples of the chief justice’s M arquette Lawyer 41

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Fall 2011 members of the bar and community, and Judge Wynn’s family and friends.marks of Dean Joseph D. Kearney before the Fourth Circuit en banc and a large assemblage of other judges, T of the Court of Appeals and on the North Carolina Supremeof Court.the United April States 12, Court2011, ofthere Appeals was fora formal the Fourth investiture, Circuit. in Judge Wynn,O L’79, previously served as a judge vestiture of the I R of disabled justices. has argued that the son aptly demonstrates, history is filled with examples ability is that pressing of a concern. To be sure, as Atkin- his own disability. to make achiefjusticecandidlyandobjectively assess ers, theassociatejusticesdonothave thewherewithal of hisvote. Without andpow- suchinstitutionalnorms offour”“rule inordertodivest anailingchiefjustice cannot schedulecasesfor reargument orsuspendthe Chief Justices Taft andBurger, theassociatejustices levers togive push. thechiefjusticeanecessary Unlike justice’s disabilitywithhim, they lacktheinstitutional the associate justices were willingtodiscussthechief all agree that action was warranted. Moreover, even if problem in deciding to act, especially if they did not a formal administrative role, they faced a coordination several hurdles in doing so. Because none of them had such an overture. Even if they had, however, they faced did not have the relevant information necessary to make did not know the extent of his illness meant that they the fact that Chief Justice Rehnquist’s own colleagues disabled chief justice and urge him to resign. Granted, tating that associates justices can, or should, approach a answer—there are no norms or historical dic- I was young, but wise enough not to make it a it make to not enough wise but young, was I selection: judicial of modes best the concerning then discussion public a had I and He Marquette. at him met first I when member faculty tenured barely a was I accomplishments. Wynn’s Judge for credit no claim can I years, eight going-on for School Law University Marquette of dean been have I while n emarks of n For all this, one might still ask whether judicial dis- but bring to qualified am I Court. the Please It May and Traxler, Judge Chief you, hank thanks D ean Kearney and and greetings to this event. For, event. this to H o n. James R a A leigh, N.C., of the ers of the center chair. . . . to serve while disabled, has to do with the unique pow- increase in the likelihood that a chief justice will continue sociate and chief justices, and about the corresponding about the variation in retirement rates between the as- different case. The reason why we should be concerned however, we believe that the chief justice presents a those who maintain that the problem is not significant, of concern. Even were we to accept the arguments of and physical deterioration among the justices as a matter justice’s drop-off in functionality.” a drop-off in quality remotely commensurate with the “who generally can keep a chambers running without tices, as well as by the presence of a justice’s law clerks, disability are mitigated by the presence of the other jus- century. Farnsworth further contends that the effects of the aggregate service time of all the justices during that mental deterioration constituted at most two percent of justices worked while suffering from some degree of the periods of time in the 20th century during which serious attention.” Yet, as Ward Farnsworth has observed, it remains “a persistently recurring problem that merits quently during the 20th century than the 19th and that problem of “mental decrepitude” occurred more fre- active ways, whether whether ways, active in Marquette, at us remembering always for but today speak to invitation the for simply not Wynn, Judge to are thanks the events, all In Wynn’s. Judge for match no are oratory of debate .

We are inclined to side with those who view mental W . My poor powers powers poor My . y nn, Jr. H o n. James A. Wynn, Jr., as a judge T h e following are the re- n. James A. Wynn, Jr. H o