JOURNAL OF S UPREME C OURT H ISTORY Five Justices and Why They Left the Court for “Better” Positions JAMES F. FLANAGAN Justices are notoriously reluctant to leave Understanding the reasons that prompted the Court. Forty-nine died in office, and age each to leave the most powerful and presti- and illness prompted almost all the others to gious position in the federal judiciary reveals depart.1 Yet five Justices did leave for another, much about the men, their times, and the and perhaps, better job. They were, in the Court. Was their momentous decision a order of their resignations, John Rutledge, the cause of later regret, or did they find their first senior Associate Justice, who resigned in subsequent careers more important and 1791 to become the Chief Justice of the fulfilling? South Carolina Court of Common Pleas and These Justices shared some important General Sessions; John Jay, the first Chief characteristics. All were men of action and Justice, who followed in 1795 after being political affairs. All came to the Court as elected governor of New York; Charles Evans national political figures. Three had been Hughes, who resigned in 1916 to be the elected to high office, Rutledge and Hughes Republican candidate for President; James F. as governors of their respective states and Byrnes, who left in 1942 to become the Byrnes as a senator, and the latter two were Director of the Office of Economic Stabiliza- mentioned as potential national candidates. tion; and Arthur Goldberg, who resigned in Jay held important positions under the 1965 to serve as the U.S. Ambassador to the Articles of Confederation and was its chief United Nations. diplomat and one of the founders of the All were in good health and in the prime republic. Goldberg was in the high counsels of their careers. Byrnes was sixty, Jay was of the labor movement and deeply immersed forty-nine, and the others were in their fifties. in state and national politics before becoming All had been offered and accepted the new Secretary of Labor. position when they resigned and, but for that Although they sat on the highest court in new job, would have remained on the Court. the country, the judiciary had not played a FIVE JUSTICES WHO LEFT THE COURT 73 prominent role in the earlier careers. Jay had that position. He had made his decision to some minor judicial experience and Rutledge retire in 1875 for the typical reasons of had sat as a judge in equity for the five years heath and weariness with the work of the before his appointment. He had, however, Court. However, many did not want President oscillating views on which court was more Grant to name his successor, and so Davis important to him. He left the state equity court reluctantly agreed to defer tendering his to join the Supreme Court but resigned in resignation until Inauguration Day 1877. 1791 to return to the state Court of Common The Hayes-Tilden election of 1876 produced Pleas. Amazingly, he sought reappointment political deadlock, and there was intense and was reappointed to the Court in 1795, maneuvering over which Justices might be only to become the first nominee and first named to the Electoral Commission that interim appointee to be rejected by the Senate. would award the disputed electoral votes. Only Hughes and Goldberg enjoyed the life Justice Davis was not personally involved in of a Justice. these machinations, but, through the conniv- Wars and rumors of wars were key to ance of a small group who sought to influence four of the five resignations. Jay was a him, Davis, without knowing or agreeing diplomat and subsequently governor of a with their plans and efforts, was elected to the key state as Washington tried to avoid Senate in late January 1877. Thus his story is entanglements in the war between revolu- not about his resignation or his subsequent tionary France and Great Britain in the service, but how, to his surprise, he found 1790s. Hughes was a presidential candidate himself in the Senate that afternoon. His with World War I raging in Europe. Byrnes experience also provides a window into the became the economic czar in World War II Court’s role in electing Rutherford B. Hayes and Goldberg was a presidential advisor and the President. diplomat during the Vietnam conflict. Finally, the resignations are unevenly grouped. Two occurred in the early 1790s and The 1790s: John Jay and three in the half-century between 1916 and John Rutledge 1965. There have been no similar resignations in the fifty years since Justice Goldberg left The Supreme Court careers of John Jay the Court. Why the role of a Justice was less and John Rutledge were so intertwined that attractive to these men, and during those they must be told together. Both were early and times, provides another perspective on the strong patriots committed to the Revolution, Court. A few other Justices also resigned in the Constitution, and the Republic. Rutledge mid-career for reasons peculiar to each, was the wartime governor of South Carolina, a including Benjamin Curtis and Abe member of the Continental Congress, and Fortas, but the most interesting stories are an influential delegate to the Constitutional the five Justices who specifically resigned to Convention, where, among other accomplish- take other high positions in government ments, he was responsible for the Supremacy service. Clause requiring the state courts to follow One other Justice must be noted in the federal law. context of resignations and post-Court Jay was a member of the Continental positions. Justice David Davis submitted his Congress and its president in 1779, and then resignation from the Court on the morning of diplomatic envoy to Spain, followed by March 5, 1877 and was sworn in as a senator service with Franklin and Adams negotiating that afternoon. Unlike the others, however, the peace treaty with England. Subsequently, the motive for his resignation was not to take he was Secretary for Foreign Affairs from 74 JOURNAL OF SUPREME COURT HISTORY 1784 to 1790 under the Articles of Confeder- Justice Rutledge drew the Southern Circuit, ation and an author of the Federalist along with Justice Iredell of North Carolina, Papers and he played a key role in New and had to travel through the Carolinas and York’s narrow ratification of the Constitu- Georgia. Iredell complained he had ridden tion. A man of many parts, Jay’s efforts 1,900 miles on the circuit plus 1,800 miles to during the Revolution as a member of New and from New York in 1791.7 York’s conspiracies committee identifying Rutledge would have spared his col- and investigating Tories led to his recent leagues this ordeal. He had argued during the recognition by the CIA as America’s first Constitutional Convention that there was no counterintelligence chief.2 need for the lower federal courts. The state Both were strong Federalists and friends courts were open and, under his Supremacy of George Washington, who considered both Clause, were compelled to follow and enforce men for Chief Justice of the newly created federal law. The First Congress decided Supreme Court in 1789. Washington chose otherwise, with serious consequences for Jay not only for his well-known character and the Justices’ health. Iredell, for example, contributions to the Revolution and the died at forty-eight after riding the Southern Republic, but also for sound political reasons. Circuit four times in five years. Jay, a New Yorker, balanced an administra- Jay’s situation was better. The federal tion tilted toward the southern states, and his government was in New York, his home, and appointment also removed him as a potential then in nearby Philadelphia. He rode the Secretary of State, which eased the way for Eastern Circuit through New England with its Jefferson’s appointment.3 shorter distances and better means of trans- Rutledge, by all accounts, was a proud portation. However, he also complained that man who demanded that his high status be his position kept him away from his family respected. He once had the South Carolina for half a year and “obliges me to pass too House of Representative hold a man in considerable a part of my time on the road, in contempt of his privileges as a member lodging houses and inns.”8 because the man had not accepted a message Complaints by the Justices about this delivered by his slave.4 Rutledge initially was ordeal were prompt and incessant. Originally, reluctant to accept appointment as the senior it was expected that the Justices would ride Associate Justice. His friends privately each circuit in turn. Over the objections of grumbled that his judicial experience was Iredell and in the absence of Rutledge, greater than that of Jay, who had only a brief however, the other Justices voted during the stint as a judge in New York in 1777.5 February Term 1791 to pair the Justices in a However, Washington’s warm and respectful specific circuit, thus confining Rutledge and personal letter to Rutledge led him to accept. Iredell to the largest and least developed The federal appointment, although pres- circuit.9 tigious, came with one very large thorn. In A few weeks later, on March 5, 1791 addition to the spring and fall terms of Rutledge resigned to become the chief justice the Court in the capital, then New York, of South Carolina’s newly created Court of Congress required the Justices to sit as federal Common Pleas and General Sessions. His circuit judges twice a year in either the Supreme Court tenure ended without him Eastern, Middle or Southern Circuit.