The summer of 1945 and a Justice resigns–and no one seems to care

I am 68. A year before my birth, a Supreme Court Justice resigned. For all intents and purposes, the resignation was a non event as we learn from the Jackson List. How the world has changed!

For the Jackson List:

On Monday, June 18, 1945, the Supreme Court of the United States announced its final decisions of its term and began its summer recess.

That same afternoon, Justice Robert H. Jackson, almost eight weeks into juggling his Court work with his presidential assignment to serve as U.S. Chief of Counsel for the prosecution of Axis war criminals in the European Theater, left Washington National Airport on a military plane to Labrador (for refueling), then England, and fulltime work on what became his job as U.S. chief prosecutor at Nuremberg of Nazi war criminals.

Back in Washington, Justice Jackson was not the only Supreme Court Justice who had departed from Washington with something more than the ordinary characteristics of taking the Court’s summer recess.

Justice Owen J. Roberts also was gone.  He was the Court’s senior Associate Justice, appointed by President Hoover in 1930.  By 1945 if not sooner, Roberts had become unhappy on the Court.  He also had turned age seventy that May and was eligible for a retirement pension.

On Monday, June 4, 1945, Justice Roberts was present on the Court bench and participated in announcing decisions.

He was absent on the next decision day, Monday, June 11th.

He was absent again on the final decision day, June 18th, missing the Court session that concluded with commencement of its summer recess.

Justice Roberts had, in early June, departed Washington for his true home, his farm in Chester Springs, Pennsylvania.

On Saturday, June 30th –seventy years ago today – Justice Roberts sent President Truman a letter of resignation.

Justice Roberts also wrote, longhand, this letter to Chief Justice Harlan Fiske Stone:

245px-Owen_J._Roberts_cph.3b11988My dear Chief, 

            I am about to submit my resignation as Associate Justice to the President.  I did not wish to do so without advising you.  Hence this note.

            I do not know when the White House will announce the matter, and I am sure you will hold the news confidential until that occurs. 

            I wish Mrs. Stone and you a good and restful summer.  Mrs. Roberts sends her regards to both of you.

                        Sincerely yours,

                                    Owen J. Roberts

Justice Roberts’s decision remained a secret until Thursday, July 5th.  At his press conference that afternoon, President Truman announced the decision by reading Justice Roberts’s letter to him and his letter of reply – click here.

Here is the extent of the public mention of the Justice’s retirement at a press conference held by President Truman shortly after the resignation and on July 5, 1945:

Now here is another letter from Chester Springs, Pennsylvania, dated June 30, 1945, addressed to the President [reading]: “As I have served as a member of the Supreme Court for more than fifteen years, and have attained the age of seventy years, I desire to avail myself of the provisions of Section 260 of the Judicial Code, as amended, (28 U.S. Code § 375),–“

Nobody but a Justice would write that. [Laughter]

“–and to resign my office as Associate Justice.

“Accordingly, I tender you my resignation, to take effect July 31, 1945.

“I am, Sir, with great respect, Sincerely yours, Owen J. Roberts”

[5.] “Dear Mr. Justice: I am indeed sorry that you have decided to retire from the Bench after your long service.

“The Supreme Court, in the period during which you have served as a member, has been called upon to pass upon some of the most important economic and social problems in the history of our country.

“As I told you this afternoon when I saw you and finally agreed to accept your resignation as of July 31, 1945, I do so only on your promise to continue to give your country the benefit of your sound judgment and advice as occasion arises.

“I extend to you the gratitude of the nation for the service you have rendered.”

Q. Mr. President, I notice he resigned. Is that something different from the retirement the other Justices have?

THE PRESIDENT. I think he intended to retire. I think that is the sense under the statute he cites. I think he intends to retire from the bench. At least, that’s how I took it.

Q. Have you picked a successor to Justice Roberts yet, sir?

THE PRESIDENT. I have not. I haven’t thought about a successor. I am ready for questions now, if you have any.

76. The President’s News Conference July 5, 1945, Harry S. Truman Library and Museum (last accessed July 7, 2015).

Indeed, how the world has changed. At least insofar as the Court is concerned, I do not believe it has changed for the better.


8 responses

  1. Have things changed for the better? I hope so. Roberts was a nonentity who would have been virtually lost to history but for “the switch in time that saved nine.”* I hope that those nominated more recently are more talented and have a better head for the Constitution and the law. (Thomas and perhaps Alito notwithstanding.)

    * See for an account that has more sympathy for Roberts than I do.

  2. Jon Given the number of Justices that have faded into obscurity perhaps nonentity is the natural state of the judiciary, good enough for the times but footnotes to history. The Frankfurter article on Roberts is worth a read, though Felix is sliding into obscurity because belief in and action on the idea of judicial restraint does make for an exciting read.

  3. RBG needs to get on the stick and send in her retirement letter now. She has done her duty to her country. The thought of President Ted Cruz appointing her successor should be motivation enough. President Hillary Clinton ain’t happening.

  4. And with a Republican Senate, no appointee of Barack Obama would be confirmed between now and election day, unless it were a dyed-in-the-wool Republican and Hillary is way far ahead in the polls.

  5. I learned yet another factoid here today.

    In addition to learning about Justice Jackson’s resignation (or, his retirement, or whatever), from the Supreme Court, I ALSO LEARNED THAT YOU AND I ARE THE SAME AGE (I am soon to be 69).

    Perhaps we are twin brothers from different mothers. So please le me know your date of birth — if you don’t mind spreading this information to the world.


    Brother Jim

  6. Judge:
    I’m guessing that it caused nary a ripple back then because in 1945 the High Court was a court of law, not an in instrument of social policy.

  7. Marbury v. Madison was an expression of social policy. So was Dred Scott (which I’ve cited as Dred Scott v. Sanford, 60 US 393 (1857), overruled sub. nom. The Civil War). Lochner and Parrish were expressions of social policy. And Brown v. Board of Education, too. As Finley Peter Dunne’s Mr. Dooley said, “Whither or not the Constitution follows the flag, the Supreme Court follows the illiction returns.” (For those not familiar with Mr. Dooley, he was born on the Emerald Isle.)

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