Supreme Court Justices Who Died in Office: Full Record and Aftermath

Forty-nine Supreme Court justices have died in office, from James Wilson in 1798 to Ruth Bader Ginsburg in 2020. The group includes 10 Chief Justices and 39 Associate Justices. Each death set off the same constitutional sequence — a presidential nomination followed by a Senate confirmation vote — though the politics around those vacancies have ranged from a three-week turnaround to a seat held open for more than a year.¹

The Three Most Recent Deaths

Ruth Bader Ginsburg died on September 18, 2020. Antonin Scalia died on February 13, 2016. Chief Justice William H. Rehnquist died on September 3, 2005. Those three deaths bookend a modern era in which sitting justices rarely die in office at all: after Robert Jackson’s death in October 1954, more than 50 years passed before the next one.¹

The Full Record

James Wilson, one of George Washington’s original appointees, was the first justice to die on the bench, on August 21, 1798. Forty-eight more have followed.¹

The Chief Justices who died in office are a line of major figures in American law:

John Marshall, who served 34 years and shaped judicial review, died July 6, 1835.
Roger Taney, author of the Dred Scott decision, died October 12, 1864.
Morrison Waite died of pneumonia in 1888.
Melville Fuller died July 4, 1910.
Edward Douglass White died in 1921.
Harlan Fiske Stone collapsed during a session and died in 1946.
Fred Vinson died suddenly in 1953.
William H. Rehnquist died in 2005.

Among Associate Justices, the names include Joseph Story in 1845, Samuel Miller after a fatal stroke in 1890, Robert H. Jackson on October 9, 1954, and in the modern era Scalia and Ginsburg.¹

Why Deaths in Office Were Once Common

Of the 57 justices appointed before 1900, roughly two-thirds died while still serving. Lifespans were shorter, medical care was limited, and there was no meaningful retirement benefit, so many 19th-century justices had no financial option but to keep working. Pneumonia, strokes, and infections that are treatable today were often fatal, and several justices died in their 50s and 60s from conditions modern medicine handles routinely.

The shift came when Congress created a federal judicial pension. Under current law, a justice can retire at full salary once meeting an age-and-service formula: age 65 with 15 years of service, scaling down to age 70 with 10 years.² With that security in place, and with modern healthcare, most justices now choose when to leave, often timing their departure to a president whose judicial philosophy they share. Death in office has become the exception.

What Happens on the Court When a Justice Dies

Who Runs the Court

If the Chief Justice dies, federal law transfers the powers and duties of that office to the most senior Associate Justice who is able to act, until a replacement is confirmed and sworn in.³ After Rehnquist’s death in 2005, Justice John Paul Stevens temporarily took on those administrative responsibilities until John Roberts was confirmed. When an Associate Justice dies, no handoff is needed. The Court simply operates with eight justices.

Pending Cases

An eight-justice Court can still decide cases, but it opens the door to a 4-4 split. When the justices divide evenly, the lower court’s decision stands and the Supreme Court announces the result with a brief order affirming by an equally divided Court. The parties get an answer; the country gets no national precedent, because an evenly divided affirmance carries no precedential weight.

The Court can also set a case for reargument once a new justice is seated, especially when the missing vote would have been decisive. After Sandra Day O’Connor retired and Samuel Alito replaced her, the Court reargued two cases in which O’Connor’s departure had apparently produced a 4-4 deadlock. The incoming justice does not take part in the decision to order reargument but does participate in deciding the reargued case.

Lying in Repose

A justice who dies in active service lies in repose at the Supreme Court building. In recent practice, the casket is carried to the front of the building by Supreme Court police officers, with former law clerks lining the steps as honorary pallbearers. A private ceremony is held in the Great Hall, with the casket placed on the Lincoln Catafalque, which Congress loans to the Court for the occasion. Public viewing then takes place outside the building, typically for two days.⁴

Filling the Seat

The Constitution’s Appointments Clause gives the president the power to nominate justices, subject to the Senate’s advice and consent.⁵ A nomination goes to the Senate Judiciary Committee, which since the late 1960s has handled nominees in three stages: a pre-hearing investigation, public hearings with testimony, and a committee vote on what recommendation to send to the floor. The committee can report a nominee favorably, unfavorably, or with no recommendation, and even nominees opposed by a committee majority have historically been sent to the full Senate for the final call.⁶

Confirmation requires a simple majority of senators voting. Until 2017 a minority could filibuster a Supreme Court nominee, requiring 60 votes to end debate. In April 2017 Senate Republicans invoked the nuclear option and reduced that threshold to a simple majority.⁷

How Long Vacancies Last

Gaps between a justice’s death and a successor’s confirmation have varied wildly. The longest in Court history was 841 days after Henry Baldwin died in 1844. Since 1970, the average vacancy has been roughly two months, in part because retiring justices often condition their departure on a successor’s confirmation.

Deaths allow no such planning. Roberts was confirmed within three weeks of Rehnquist’s death, but only because he had already been nominated to fill O’Connor’s seat and the White House redirected the nomination. The Scalia vacancy, by contrast, lasted 422 days until Neil Gorsuch was confirmed in April 2017, the longest gap since the Court was fixed at nine justices in 1869.⁷

When a Death Reshapes the Court

A retiring justice controls the timing and effectively hands the seat to a like-minded president. Death does not allow that, and the resulting vacancy can swing the Court’s balance in ways no one planned. The two most recent deaths show how far apart the political outcomes can land.

Scalia and the Garland Blockade

Scalia, one of the Court’s most influential conservatives, died unexpectedly on February 13, 2016, in a presidential election year. President Barack Obama nominated D.C. Circuit Chief Judge Merrick Garland in March 2016. Senate Majority Leader Mitch McConnell refused to hold hearings or a vote, arguing the next president should fill the seat. All 11 Republicans on the Senate Judiciary Committee signed a letter saying they would not consider any Obama nominee. The seat sat empty for the rest of Obama’s term. After Donald Trump took office in January 2017, he nominated Gorsuch, who was confirmed in April 2017 after Republicans invoked the nuclear option.⁷

Ginsburg and the Barrett Confirmation

Ginsburg, a leading voice on the Court’s liberal wing, died on September 18, 2020, 46 days before the presidential election. Trump nominated Judge Amy Coney Barrett on September 26, eight days after Ginsburg’s death. The Senate confirmed Barrett on October 26, 2020, by a vote of 52-48, eight days before Election Day. From death to confirmation, the process took 38 days. The result replaced a liberal justice with a conservative one and locked in a 6-3 conservative majority.

The two episodes, barely four years apart, showed how much room the Constitution leaves for political strategy. The same Senate majority that held a seat open for more than a year in 2016 filled one in just over a month in 2020. No rule required either course. The Constitution says the president “shall nominate” and the Senate provides “advice and consent,” but it sets no deadlines and imposes no obligation to act within any particular timeframe.

What Survivors Receive

Federal law provides an annuity to the family of a justice who dies in office. Under the Judicial Survivors’ Annuities Act, a surviving spouse receives 1.5 percent of the justice’s average annual salary multiplied by years of creditable service, plus three-fourths of 1 percent of that salary multiplied by any additional years of prior government service. The annuity cannot fall below 25 percent or exceed 50 percent of average salary.⁸

As of 2026 an Associate Justice earns $306,600 a year and the Chief Justice earns $320,700.⁹ A long-serving Associate Justice’s survivor annuity would run between roughly $76,650 and $153,300 a year. Surviving children also receive smaller annuities, capped at percentages that vary depending on whether a surviving spouse exists.⁸

A justice must have completed at least 18 months of service with salary deductions for survivors to qualify. The 18-month requirement is waived entirely if a justice is assassinated.⁸

1
Supreme Court of the United States. Justices 1789 to Present
2
Office of the Law Revision Counsel. 28 USC 371 – Retirement on Salary; Retirement in Senior Status
3
Office of the Law Revision Counsel. 28 USC 3 – Vacancy in Office of Chief Justice; Disability
4
Supreme Court of the United States. Press Release – September 21, 2020
5
Legal Information Institute (LII). U.S. Constitution Article II Section 2 Clause 2 – Overview of the Appointments Clause
6
Congress.gov. Supreme Court Appointment Process: Consideration by the Senate
7
U.S. Senate. About Judicial Nominations – Historical Overview
8
Office of the Law Revision Counsel. 28 USC 376 – Annuities for Survivors of Certain Judicial Officials of the United States
9
United States Courts. Judicial Compensation