Till Death Do Us Part: Chief Justices and the United States Supreme Court

22 Pages Posted: 27 Apr 2011 Last revised: 24 May 2011

See all articles by Chad M. Oldfather

Chad M. Oldfather

Marquette University - Law School

Todd C. Peppers

Roanoke College

Date Written: April 25, 2011

Abstract

Using a recent book chronicling the final illness of Chief Justice Rehnquist as a point of departure, this essay explores an overlooked aspect of the recent debates concerning proposals to modify the institutional architecture of the Supreme Court and the Justices’ terms of service. Our piece bridges two strands of that debate. One subset of the literature has explored the phenomenon of lifetime tenure enabling Justices to continue to serve beyond their ability to do so, while another has examined the implications of and concerns arising from the wide range of administrative responsibility that has accrued to the Chief Justice. Our research reveals that Chief Justices are more likely to die in office than Associate Justices. This in turn suggests that there is a greater potential for a Chief Justice to continue to serve despite an inability to do the job (as was unquestionably true during much of Chief Justice Rehnquist’s final term on the Court). This may be a product of an added allure arising from the vast array of the Chief Justice’s administrative responsibilities, or, perhaps more likely, of the lack of anyone with formal responsibility to nudge a Chief Justice toward retirement. Either way, our examination of the history of Chief Justices “at the end” provides further support for many of the proposed reforms.

Keywords: lifetime tenure, Supreme Court, Chief Justice, judicial , William Rehnquist

Suggested Citation

Oldfather, Chad M. and Peppers, Todd C., Till Death Do Us Part: Chief Justices and the United States Supreme Court (April 25, 2011). Marquette Law Review, Forthcoming; Marquette Law School Legal Studies Paper No. 11-12. Available at SSRN: https://ssrn.com/abstract=1822472

Chad M. Oldfather (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
414.288.8031 (Phone)

Todd C. Peppers

Roanoke College ( email )

Salem, VA 24153
United States

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