This past week, patriots celebrated the 34th anniversary of Justice Clarence Thomas’s appointment to the Supreme Court. This is a tremendous accomplishment and a testament to the justice, whose time has changed the face of American jurisprudence.
Only five justices have served longer: William O. Douglas, Stephen Field, John Paul Stevens, John Marshall, and Hugo Black. By my counting, Justice Thomas will surpass Justice Black next month, Chief Justice Marshall in March, and Justices Stevens and Field in April. He won’t surpass Justice Douglas until April 2028.
The last chapters of those longest-serving justices are a decidedly mixed bag. Justice Black was replaced by Lewis F. Powell Jr. — who was nominated by the hated President Richard Nixon — while Justice Douglas was replaced by Stevens — who was nominated by Nixon’s vice president, Gerald Ford. (Douglas dodged the indignity of being replaced by a Nixon nominee because liberals had fortuitously already ousted Nixon from the White House.) The arch-federalist Chief Justice Marshall was replaced by Roger B. Taney — who was nominated by Marshall’s Democratic nemesis, Andrew Jackson. The Taney Court resulted in Dred Scott. It’s interesting to think about how the run-up to the Civil War might have gone had Chief Justice Marshall allowed the anti-slavery crypto-Federalist John Quincy Adams to select the next chief justice.
Justice Field was replaced by Joseph McKenna, who was nominated by Willian McKinley, and who generally adhered to Field’s philosophy of substantive due process and de jure racism. But by the end of Justice Field’s tenure, he was senile to the point that he didn’t write a single opinion for nearly two years, power-napping through it all and hanging on just to beat Chief Justice Marshall’s record.
Only Justice Stevens seems to have come out on top, replaced by Justice Elena Kagan. Justice Stevens retired on June 29, 2010, and Justice Kagan was appointed two months later. That fall, Mitch McConnell would go on to net six seats in the Senate for Republicans, giving him the ability to filibuster an unacceptable Supreme Court pick. (Recall that Harry Reid wouldn’t use the nuclear option until 2013.)
Justice Stevens — who went on to live another nine years — could have easily broken Justice Douglas’s record had he retired in the last year of Obama’s first term. Given his timing, he surely assessed the political risk of waiting to step down when Republicans would likely be able to stymie his replacement, and he decided it just wasn’t worth it. So he was replaced by the most talented liberal in decades, even if that meant his topping out as the No. 3 longest-serving justice. After all, Justice Stevens only got to the Court to begin with because Ford had chosen him to replace Justice Douglas.
It all goes to show that life tenure leaves a lot to fortune. Justice Stevens, perhaps recalling his Boethius, realized that the surest way to win on fortune’s wheel is to not play.