Old People, SCOTUS, Supreme Court

On The Longevity Of Supreme Court Justices

Should we have 18-year term limits for the members of SCOTUS?

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SCOTUS QEd. note: This post discusses the subject of life expectancy and Supreme Court justices. Some readers might find this subject distasteful; if you are such a reader, please stop reading here.[1]

As of this writing, the eight members of the U.S. Supreme Court range in age from 84 to 56 (with Justice Ruth Bader Ginsburg as the oldest, and Justice Elena Kagan as the youngest). Given that life expectancy in colonial America at birth was around 40 (and is now about double that), the Founders probably did not imagine that giving justices life tenure would result in some serving for many decades. (The longest-serving justice in history, William O. Douglas, served for more than 36 years; the longest-serving justice on the current court, Anthony M. Kennedy, has served for more than 29 years.)

The dramatic increase in longevity, driven by factors ranging from medical advances to improved nutrition to a reduction in violence, is a wonderful thing. But it does have consequences for a judicial system in which judges enjoy life tenure, as actuary David Fishbaum of Oliver Wyman explains in an interesting article for Contingencies magazine. (Gavel bang: my father-in-law, an actuary.)

After running a Monte Carlo simulation, Fishbaum came up with some interesting data (emphases added; see also this infographic for highlights):

  • “[T]he expected number of new judicial appointments to the Supreme Court over the next 100 years will be a mere 25…. This compares to 47 in the previous 100 years, 56 in the 100 years ending in 1993, and 60 in the 100 years ending in 1969.”
  • “[W]hile there was only one full-term president—Jimmy Carter—who did not have the privilege of appointing a Supreme Court justice, there is a 10 percent chance during the next 100 years that a president sitting two full terms will not have that privilege.”
  • “The average tenure of the justices over the next 100 years will be about 35 years versus 18.4 years for the past 100 years (excluding the sitting justices; the tenure is 18.1 if you include the sitting justices).”

In a nutshell, justices are serving about twice as long as they used to. And that has implications for our system of governance, according to Fishbaum:

The lack of movement on the court will amplify the significance of every appointment moving forward and is likely to make the appointment process even more vitriolic, given what is at stake. Additionally, with the potential that some presidents may get to make multiple appointments, will they end up having an undue influence on constitutional law?

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These super-high stakes are, of course, what led to the Republicans’ refusal to hold hearings or vote on the nomination of Judge Merrick Garland to the Supreme Court. And it’s quite possible that the Democrats, when they are back in power, might take revenge make similar efforts to control SCOTUS (perhaps through court packing, as my colleague Elie Mystal recently suggested).

What can be done to lower the stakes, and therefore the partisan battling, over the Supreme Court? Many observers have suggested term limits for SCOTUS. One popular proposal, advocated by Fix the Court, is 18-year term limits. This would, according to its proponents, strike a better balance between judicial independence and accountability, reducing the partisanship surrounding both the confirmation process and the key decisions of the Court. As noted by Christopher Ingraham in the Washington Post, it enjoys support from across the ideological spectrum.

David Fishbaum conducted an actuarial analysis of having 18-year terms:

The results of the simulation for this term limit approach show that it is successful in ensuring more turnover of the court. On average, there would likely be 49 new appointees over the next 100 years, once again assuming a new appointee in 2017….

The likelihood a president serving a full eight years without the ability to appoint a Supreme Court justice falls to 4 percent.

So another advantage of 18-year terms is that it would more evenly distribute the appointment power across presidencies, reducing the role played by luck or political maneuvering.

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There are, of course, disadvantages to a system of 18-year terms. It could reduce judicial independence. It could give a president, especially a two-term president, too much power over the Court, depending on when justices retire or die. (Term limits would prohibit justices from serving longer than the prescribed period, but obviously would not prevent a justice from retiring early or passing away.)

Now, I’m not completely sold on SCOTUS term limits. The Burkean in me worries about the unforeseen consequences of changing an institution that has, at least in my opinion, served us well over the decades.

But we have nothing to lose from posing questions about, and conducting further study into, the possibility of Supreme Court term limits. The Court is too important an institution for its composition and operation to be left entirely up to historical contingency and inertia.

[1] Over the weekend, I conducted a Twitter poll regarding which Supreme Court seat might become vacant next, and almost 600 people voted. But some found the poll distasteful, viewing it as an invitation to speculate about SCOTUS deaths (although note, of course, that vacancies can occur through retirement as well). I understand and appreciate this perspective, and I apologize to anyone who took offense. As I said subsequently on Twitter, “I wish all #SCOTUS members long & happy tenures; it’s just that, because of life tenure, who leaves when is an important issue.”

The Supreme Court Has A Longevity Problem [Contingencies]
Longevity and the US Supreme Court [Oliver Wyman]
Term Limits [Fix the Court]
Time to get serious about Supreme Court term limits [Washington Post]

Earlier: Finance And Law: The Pros And Cons Of Monte Carlo Simulations In Valuation
Republicans Can Bust The Gorsuch Filibuster, But Can They Take What Happens Next?

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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