You are here
The Evolution of Judicial Retirement
In March 1869, Justice Robert C. Grier of the Supreme Court of the United States turned seventy-five years old. His health had been in severe decline for several years, in part because of a series of strokes that left him paralyzed. As a result, Justice Grier had to be carried by attendants to his place on the bench. Believing that he could no longer endure the rigor of serving on the Court, his friends and family had long urged him to resign, but Grier had resisted.
Had Grier resigned from the bench then, he would have been entitled to no further compensation from the federal government. Article III of the U.S. Constitution endowed federal judges with tenure “during good behavior”—equivalent to life tenure, provided a judge were not removed from office by impeachment and conviction, an exceedingly rare event. For nearly all federal judges, their service could end in only two ways: resignation or death. To some, this system was unfair, even cruel, to judges who had spent decades in public service—perhaps missing out on the opportunity to earn more money elsewhere—yet were forced by financial considerations to work past the point of mental and physical exhaustion. Critics of the no-retirement system also pointed out that the public interest was not served when judges remained on the bench after their abilities had declined, an issue with which the framers had not been particularly concerned. Alexander Hamilton, for example, argued in Federalist No. 79 for life tenure and against mandatory retirement by noting “how few outlive the season of intellectual vigor.”
In 1869, eighty years after the founding of the federal judiciary, Congress addressed the situation, establishing the first judicial retirement law in the midst of making several major alterations to the courts. The law became effective in December of that year, upon which Grier’s colleagues on the Court approached him to plead that he retire. On January 31, 1870, Grier became the new law’s first beneficiary, stepping down with a guarantee that he would receive his full salary for the remainder of his life. He died seven months later.
As in many other policy areas, the legislative landscape for judicial retirement has become more complex over the years. In modern times, federal judges may resign, retire, or assume “senior status.” Those outside the court system may not know precisely what these terms mean in the judicial context or how they differ from one another. This spotlight provides background on judicial retirement legislation to explain how it evolved into the system in use today, and how that system works.
When the Forty-First Congress took up the bill that became the Judiciary Act of 1869, Senator Charles Sumner of Massachusetts introduced an amendment allowing all federal judges, upon reaching age seventy, to retire and continue to receive their full salary for life. The idea was a novel one; no pension system existed for civil servants, nor did Congress establish one until 1920. Sumner’s proposal was quickly rejected after Senator Lyman Trumbull of Illinois objected that “[a] man may be appointed when he is sixty-nine years of age, serve but one year, and then go on the retired list with the salary for the rest of his life.”
In the House of Representatives, the Judiciary Committee recommended adding a provision that addressed Trumbull’s objection by requiring that a judge serve for at least ten years before retiring. In urging the amendment’s passage, Representative John Bingham of Ohio pointed out that two members of the Supreme Court were of advanced age and might not be able to serve much longer and that one justice (referring to Grier while not mentioning him by name) “is not able to-day to reach the bench without being borne to it by the hands of others.”
The Judiciary Committee amendment also included two additional provisions, both of which were controversial: one permitting the forceable retirement of judges who had become incapacitated upon proof of their disability made before a justice of the Supreme Court (a proposal that was likely unconstitutional) and another allowing the president to appoint a new judge to any court on which a judge did not retire within a year of becoming eligible to do so.
Some members of the House objected to the retirement provisions as unnecessary and expensive, particularly in light of fears that they might one day lead to the widespread pensioning of civil servants. Representative Michael Kerr of Indiana argued that it would humiliate federal judges to suggest that they could no longer perform the job adequately at age seventy and should retire, while Horace Maynard of Tennessee countered that the legislation had been crafted “in a spirit of liberality and generosity” toward judges who could not or did not wish to work until death. The House and Senate ultimately agreed on retirement with full salary at age seventy or older with at least ten years of judicial service. The other provisions in the House version of the bill were dropped.
The simple retirement provision of the Judiciary Act of 1869 remained the law for half a century. In the early years of the Woodrow Wilson administration, Attorney General James McReynolds (who left office in 1914 to join the Supreme Court) recommended a change in judicial retirement policy. In a 1913 report, McReynolds noted that despite the retirement law then in effect, some federal judges remained on the bench after they could no longer fulfill the demands of the job. Although the attorney general did not name any specific judges, a famous historical example was Supreme Court Justice Stephen Field (1863–1897), who remained on the Court until the age of 81, long past the point where his faculties had declined. A possibly apocryphal but frequently told anecdote had Justice John Marshall Harlan attempting to convince Field to retire by reminding him that he was among those who urged Justice Grier to step down thirty years earlier. “Yes!” Field was said to have replied, “And a dirtier day’s work I never did in my life.”
Recognizing that Article III’s grant to federal judges of tenure during good behavior meant that such judges could not be removed from office against their will other than by impeachment, McReynolds proposed the mandatory appointment of an additional judge to any court (other than the Supreme Court) on which a judge who was eligible to retire did not do so. The proposal was substantially similar to one of the provisions the House Judiciary Committee had introduced without success in 1869. Between 1915 and 1919, Congress considered several bills along the lines of what McReynolds and his successor, Thomas Gregory, advocated.
These bills drew strong objections from many members of Congress, some of whom believed them to be unconstitutional. Although the proposed legislation would not literally remove judges from office against their will, critics alleged that the effect would be the same. The newly appointed judges would become primarily responsible for holding court, while the older judges would be “relieved” of their duties, performing judicial service only when called upon in case of a particular need. Walter Evans, a U.S. district judge in Kentucky, authored a memo to Congress arguing that the policy clearly violated Article III. In his view, the law would accomplish “a substantial removal in fact though not in form.” “While the ‘duties’ of a judge may be fairly changed,” he wrote, “they can not be substantially taken away without materially interfering with the ‘tenure’ and ‘duration’ of the office, for if the duties are entirely taken away, nothing is left but a pension—salary which may continue, though the office is vacated.” Representative Leonidas Dyer of Missouri opposed the legislation strenuously. In addition to agreeing with Judge Evans that it was unconstitutional, Dyer believed it would impinge on judicial independence. The legislation, he claimed, provided the president with a method to sideline a disfavored judge, thereby bringing political pressure to bear on the judiciary.
Because of these objections, the remedial legislation ultimately enacted in 1919 was not as sweeping as earlier proposals. As in earlier bills, the president was empowered to appoint an additional judge in instances where a judge eligible to retire was found unable to fulfill the duties of the office because of a disability. The 1919 statute, however, did not “relieve” disabled judges of their duties but only treated them as junior in commission to the remaining judges of their courts. When a disabled judge left the bench, no successor would be appointed. While the bill was under consideration, Representative Henry Steele of Pennsylvania reassured his colleagues that the judge deemed disabled “still performs such judicial functions as he can. He is not displaced.” Representative Dyer, perhaps the strongest opponent of the earlier bills, acknowledged that the revised provision “will still permit the other judge, that is, the judge who is being given this assistance, but who still remains on the bench, to be a judge in fact.”
Despite the extensive debate that surrounded it, the provision enabling the president to appoint additional judges did not have a significant impact on the federal judiciary. It was invoked only ten times in the century after its passage. The other provisions of the 1919 act, however, brought about important changes. The law provided that district or circuit judges age seventy or older who had served at least ten years could retire on full salary, as before, or could retire “from regular active service on the bench” but remain eligible to perform whatever judicial service they were willing to undertake. The phrase “retirement from active service,” while remaining the statutory terminology, later became generally referred to as the assumption of “senior status.” The creation of senior status provided an option for judges who were eligible to retire, and might not want to carry a full caseload, but did not wish to cease judicial service entirely.
Congress has made occasional changes to the retirement provisions for federal judges since 1919. In 1937, justices of the Supreme Court were for the first time accorded the option of assuming senior status. Justices on senior status could be designated to sit on other courts but were no longer eligible to participate in cases before the Supreme Court. This limitation was put to the test when Justice William O. Douglas retired in 1975 after having served for more than thirty-six years, the longest tenure in the Court’s history. Although his health had been in decline for several years prior to his retirement, Douglas insisted that as a senior justice he retained the right to participate in matters coming before the Court. Chief Justice Warren Burger drafted a memorandum in response, signed by the other justices, informing Douglas, “It seems clear beyond doubt that your retirement … operated to terminate all judicial powers except such as would arise from assignment to one of the Federal courts other than the Supreme Court.”
Congress established an exception to the eligibility rules for senior status in 1939. Judges not meeting the standard age and service requirements might nevertheless assume senior status upon certifying in writing that they suffered from a permanent disability that prevented them from fulfilling the duties of their office. Judges assuming senior status under this law would receive a full salary if they had served for ten years or more and half of that amount otherwise. These judges could perform whatever judicial service they were able and willing to undertake.
In 1948, judges on senior status were granted “the salary of the office,” meaning that they would receive pay increases along with judges in active service rather than remaining at the salary they received at the time of retirement. In 1989, Congress established workload benchmarks senior judges must meet to remain eligible for pay raises. The requirements for eligibility for full retirement and senior status were made more flexible in 1954, when judges sixty-five years of age who had served at least fifteen years were included. In 1984, Congress introduced the “Rule of 80,” whereby a judge whose age and years of service totaled eighty (with a minimum age of sixty-five and a minimum tenure of ten years) would be eligible. Senior judges no longer desiring or able to perform judicial service would have the option of remaining on senior status at the salary they last received or taking full retirement. These options are functionally identical but for the fact that an inactive senior judge might elect to resume service, while a fully retired judge has separated from the judiciary and may not perform further service.
The judicial retirement system has evolved over the last 150 years to become more inclusive and flexible, benefiting both individual judges and their courts. Federal judges who have given long years of service to the courts, likely at a substantially lower salary than they would have earned in the private practice of law, are compensated by having access to the full retirement and senior status options. In the century since the inception of senior status, more than 1,800 federal judges—nearly half the number of all federal judges appointed since 1789—have availed themselves of this opportunity. Even more importantly, senior status judges have been crucial to the operation of the federal judiciary, handling a sizeable portion of the courts’ workload. Many judges have continued to maintain a full caseload for years after assuming senior status. Retirement laws have been a boon to the Third Branch, bringing compassion and equity to a once harsh system and strengthening the federal judiciary in the process.
Jake Kobrick, Associate Historian
For more information, contact email@example.com
Related FJC Resources:
Learn more about the Judiciary Act of 1869.
The advanced search of the Biographical Directory of Article III Federal Judges, 1789–present allows users to search by senior status or retirement date and to identify all judges currently on senior status.
Block, Frederic. “Senior Status: An Active Senior Judge Corrects Some Common Misunderstandings.” Cornell Law Review 92, no. 3 (Mar. 2007): 533–548.
Burbank, Stephen B., et al. “Leaving the Bench, 1970–2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences.” University of Pennsylvania Law Review 161, no. 1 (Dec. 2012): 1–102.
Evans, Walter. “Compulsory Retirement of Circuit and District Judges.” 64th Cong., 2nd sess., 1917, S. Doc. 64-688, U.S. Congressional Serial Set 7125.
Ward, Artemis. “The Tenth Justice: The Retirement of William O. Douglas.” Journal of Supreme Court History 25, no. 3 (Nov. 2000): 296–312.
This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.” While the Center regards the content as responsible and valuable, these materials do not reflect policy or recommendations of the Board of the Federal Judicial Center.