Judges of Old: Putting The “Frail” Supreme Court in Historical Context

UPDATE (2/13/16): Hello. If you have reached this page in connection with the recent passing of Supreme Court Justice Antonin Scalia, I do think there are some additional useful tidbits of information to note. 

  • First, the longest vacancy on the Supreme Court happened in 1844-46. Yes, it lasted over two years, and also started in the first third of an election year. Outgoing President Tyler nominated two people to the seat, but both were rejected by the Senate. Incoming President James K. Polk also nominated two more people, but one was rejected by the Senate and one withdrew. It was only on Polk’s third (and the fifth overall) nomination that Robert Cooper Grier was seated after a vacancy of 834 days.
  • Justice Scalia’s death becomes only the second in the last 43 years. In fact, with the growing tide of retirements/resignations (mentioned below), election-year vacancies have become exceedingly rare. Only two Supreme Court Justices have been nominated in an election year since 1916: Benjamin Cardozo, a widely acclaimed choice by Hoover in 1932, and William Brennan, a recess appointment that was later ratified by the Senate after Eisenhower won reelection in 1956. This speaks some to the increased politicization of the Court, but it could just as easily be seen as Justices wanting to minimize vacancy time. 
  • Perhaps most importantly for the future, we have very little data on how this nominating process will proceed from here. Justices have been scared of timing it this way in the past, but we really have no way to know if their fear has been justified, and we are likely to find out, as if it works out as expected, this will probably be the example that people keep in their minds for the next fifty years. 

A common topic of conversation for people who watch the Supreme Court is how political processes will influence its future makeup. As legal issues before the Court are increasingly viewed through a political lens, more and more observers are attempting to read the minds of Justices that they see as at “retirement age” to determine whether they might step down from the bench, and whether a like-minded president might be some incentive to do so.

And when this exercise commences, most people are quick to point out that four of the current Justices (Ginsburg, Kennedy, Scalia, Breyer) are 77 or older, and that many, many former Justices had been long retired by then. All four of these Justices plus Clarence Thomas have served on the court for at least twenty-one years. Given that unqualified and relatively inexperienced lawyers tend not to get confirmed, the age of the Court must be a concern collectively, if not individually.

But is there a way to figure out what proper retirement age is for your generic Justice outside of mere anecdotes? I set out to determine how the age breakdown of the Court has changed over time, and how that was being driven both by appointments and decisions to retire or resign.

(A brief aside regarding methodology: I determined the average age of the Court based on its makeup on December 31 of each year listed. I am assuming that everybody currently on the Court is still serving on December 31, 2015. I then made a few adjustments: If a seat was vacant on December 31, but somebody had held it in the previous calendar year, I calculated the age of the Court based on what the previous holder’s age would have been on December 31 if they had still held the seat. However, if a seat had been vacant for an entire calendar year (two instances), I did not count the seat as being held by anybody. I also counted Justice James Iredell as serving in 1789 as he was an original appointee to the Court.)

The first chart here plots the age and year of every Justice leaving the Court, drawing a distinction between those that either retired or resigned and those who died while serving on the Court. (Roughly ten Justices retired from the court very shortly before they died due to medical reasons related to their eventual death, and those Justices on this chart are also marked as having died functionally while serving on the Court.)

Deaths 2

There are some immediate observations that stand out. First is the frequency of deaths of active Justices as compared to retirements/resignations. In the first two decades of the Court’s existence, there are eight resignations as compared to only two deaths. The latter is in part due to the relative youth of the Court at the time, but the former is related to the Court’s perception as an inferior branch of government. But by 1810, as the Marshall Court establishes itself, retirements and resignations have become the exception rather than the norm, with only four resignations over the next 70 years, three of which are highly unusual:

  • 1835: Gabriel Duvall, perhaps the most insignificant Justice, retires at the age of 82, by some accounts long after he has stopped substantively contributing to decisions.
  • 1857: Benjamin Curtis, the first Justice with a law degree and the only Whig justice to serve on the Supreme Court, resigns as a result of the decision in Dred Scott v. Sandford. (His successor, Nathan Clifford, is unfortunately pro-slavery.) Curtis goes on to successfully represent President Andrew Johnson at his impeachment proceedings.
  • 1861: John Archibald Campbell, a former child prodigy originally admitted to the Georgia bar at the age of 18, resigns from the Supreme Court immediately following the Battle of Fort Sumter and returns to his home in Alabama. He is later named an assistant Secretary of War for the Confederacy. After the war, he is briefly imprisoned but then is released and continues his private practice, later arguing the Slaughterhouse Cases in front of the Supreme Court.
  • 1877: David Davis, a renowned independent, is supposed to serve on the 1876 Electoral Commission to resolve the presidential election between Samuel Tilden and Rutherford B. Hayes. The commission of 15 members (5 representatives, 5 Senators, and 5 Justices) is selected specifically to break 7-7 along party lines, with Davis as the tiebreaking independent. However, Davis is simultaneously chosen by the Democrat-controlled Illinois Legislature as the new Senator from Illinois (direct election of Senators was still thirty-five years away). While the legislature does this in hopes of currying favor with Davis, he promptly resigns from the Supreme Court to take his Senate seat and refuses to serve on the Commission as a result. As the remaining members on the Supreme Court are all Republicans, every dispute is resolved 8-7 in favor of Hayes, and he wins the election by one electoral vote (185-184).

As the nineteenth century comes to a close, while retirements are still uncommon and most Justices serve until their death, they are no longer unusual. The final tipping point is sometime around FDR’s presidency, with the increasing age of the Court bringing about, indirectly, FDR’s attempted Court-packing plan and a particularly compressed spate of retirements (only Owen Roberts’s seat remains unchanged between 1937 and 1941, as Harlan Fiske Stone is elevated to Chief in 1941). This is a subject for a much longer post and has been explored exhaustively by better writers than me. In the meantime, it is worth noting that after the rather unexpected deaths of Chief Justice Fred Vinson in 1953 and Justice Robert Jackson in 1954, only one Justice (William Rehnquist in 2005) has actually died while actively serving on the Supreme Court, and only two others (John Marshall Harlan II and Hugo Black, both in 1971) died very shortly after they retired.

With respect to the entire court, the average age of active Justices has stayed mostly within a narrow range (between 60 and 70 years old) for much longer than you might expect. Since first rising above 60 years in 1825, it has only dipped below 60 twice: at the end of the Marshall Court (when 79-year-old John Marshall died and 82-year-old Gabriel Duvall retired) and immediately following the FDR nominations mentioned above. Similarly, the only times the average age has risen above 70 are immediately preceding the FDR nominations as well as immediately before Chief Justice Warren Burger’s retirement in 1986.

And yes, that includes the current Court. Considering that five of the Justices have served for over 20 years, it would be easy to assume that the Court, which rarely appoints those under 50, should easily have an average age over 70. Even with four relatively old Justices on the Court right now, the Court’s stability over the last 20 years has not yet translated into a historically old Court (although the Court will pass 70, on average, in mid-2016, so we are approaching potentially uncharted territory). Given the steady increase of life expectancy from 1790 to today, it would be logical to see the greatest jumps in average age being made from 1880 to 1950. And while there is a slight upward trend during that time, the “noise” of FDR turning over most of the Court at once dominates any signal that might be seen as a result.

Perhaps this makes sense, though. While the average life expectancy for the United States has increased dramatically, the people who have managed enough education and social connections to get appointed to the Supreme Court are far more likely to be sufficiently moneyed to have access to state-of-the-art healthcare and are likely to avoid the types of activities that would result in life-threatening injuries that would drive down life expectancy in the nineteeth century.

While this might imply that there should be more Justices in their eighties nowadays, as the ~$250,000 salary for Justices is sufficient to have access to top-of-the-line benefits, there is no upward trend at all if the plotted points for deaths are isolated in the above chart. In fact, the trend may be slightly downward, with more recent Justices dying at generally younger ages than those from the early- and mid-nineteenth century. While many Justices now do in fact live longer, they are now retiring first instead. Thus, it is more likely that you will have several retired Justices than several active Justices above 85, even though Roger Taney served until his death in 1864, when he was 87. Although there is no upward trend for the ages of Justices at their death, retirements and resignations are certainly happening, on average, at progressively older ages for Justices, with David Souter being the only Justice in nearly 35 years to retire before the age of 75.

Supreme Court Appointments
Chief Justices, whether newly appointed or elevated, are marked in a brighter red. Those directly elevated from an Associate Justice seat are: Justice White (1910), Justice Stone (1941), and Justice Rehnquist (1986). Both Justice Rutledge (1795) and Justice Hughes (1930) served prior nonconsecutive terms as an Associate Justice.

Another reason for the lack of Justices in their eighties may be hidden in the age trends for appointments. In considering who is unfit to be a Supreme Court Justice, one of the first criteria would be experience. Based on life expectancies, a balance between experience and youth (or at least not-being-super-old) should also result in a gradually increasing age for most nominees. This should be reinforced by the trend toward a seven-year training period for lawyers between 1850 and 1930. However, if you discount the early days of the Supreme Court, before the Marshall Court firmly established the Court’s legitimacy, and start at the appointment of Justice Thompson in 1823, the vast majority of appointees have been in their 50s since then. While there was a slight trend toward older nominees between the Civil War and the Great Depression, that trend has, if anything, reversed itself since then. The most recent Justice to be at least 61 years old at the time of their appointment is Lewis Powell, in 1972. (The 13 new appointees of over 61 years of age were all nominated between 1870 and 1971.)

That’s correct: Supreme Court appointees are, on average, getting younger, and have been since the 1930s. Again, the specter of the Court Packing Plan and the resultant politicization of nominees looms large. Beforehand, a handful of cross-party nominations had previously succeeded, including Justice Field in 1863 and Justice Lamar in 1910, and before the two parties aligned significantly with the ideological spectrum, it was common for presidents to nominate from other ideological wings of their parties. However, if legal doctrine, and particularly constitutional law arguments, can be easily broken down into “Republican” and “Democrat” views, gaming the system by trying to keep your nominees on the Court as long as possible becomes not only attractive but feasible. Court watchers should find this as no surprise.

The youngest Justice appointed in the last 200 years is William O. Douglas, FDR’s third appointee during this flurry of replacements. Douglas, of course, went on to become the longest-serving Justice in history. His record could feasibly be broken (in 2027) by Clarence Thomas, who was appointed by George H.W. Bush in 1991 at the age of 43. Thurgood Marshall, Thomas’s predecessor and a liberal Johnson appointee, publicly expressed frustration at the time of his retirement that Bush was going to be able to choose Marshall’s replacement.

As a result, terms of service are getting longer. While there are plenty of exceptions to this (John Marshall, for example, is still the fourth-longest serving Justice in the Court’s history), very few Justices nowadays serve for fewer than 20 years. (The last Justice, in fact, to serve a shorter term than David Souter’s 19 years was Lewis Powell, the last Justice appointed past age 60. The last one prior to Powell was Warren Burger, the third-most recent Justice appointed past age 60.) Indeed, if you look at both charts, each set of points plotted tends to overlap with the average line early but drift significantly away from the average line in the last 50 years.

So what does this all mean? Well, a few potential things. First, if maximizing terms of service is the goal, appointees will likely continue to get younger in the coming decades. (Perhaps this does not immediately mean a rash of appointees in their 40s, but instead it might mean that we are unlikely to see another appointee over the age of 55.) It is unclear where the legal profession might draw the line for “sufficient experience,” but considering that judges are being nominated to Article III courts in their thirties, we might not have reached the baseline quite yet.

Second, the Court may, as a result of how long terms of service coincide, see wild swings in average age. While there were political considerations at play during the court-packing days and it is perhaps less likely that a significant number of the nine seats are ever replaced in a short period of time, the Justices themselves have started to take political officeholders into consideration, as Sandra Day O’Connor did in 2005 when she chose to retire.

This may result in the third and fourth events that I expect to see in the coming years: at least one wild swing on the ideology of the Court as a result of a single-party run of success in the electorate (or perhaps simply as the result of an unexpected death), and resulting mass retirements whenever the executive changes hands, including retirements of younger Justices. (This is on display to some extent in the Sixth Circuit, where two judges took senior status in 2009-10, after the last executive party switch, and nobody else has since 2001, immediately following the previous executive party switch. However, I could also easily see this going the other way, with Justices refusing to retire simply to ride out another few years for the benefit of their ideology.) In fact, even if a Justice is in good health, they may follow the lead of Justice Souter: retire early, but immediately after a party switch. While Justice Souter’s retirement was seen as consistent with his odd reputation, and while most Justices are where they are because they are the types of people who would enjoy the job that they have, Souter’s active circuit-riding and sitting by designation illustrates that these opportunities would still be available to the Justices that might follow this path.

In fact, if reports of a blue wall are not, indeed, exaggerated, we may be in for the latter sooner than we think. While the older crop of Justices does not seem to be in any hurry to retire, the four younger Justices, particularly Sotomayor and Alito, might be more receptive to this reasoning, particularly if the nomination for one of the older Justices’ replacements gets even slightly messy. This, of course, would serve to drive down the average age of the Supreme Court and perhaps turn it into perhaps a mid-career job as opposed to a late-career one. But perhaps that would spur the judiciary into becoming more adaptive with changes in society and technology. Or perhaps it might create a market for former Justices running for elected office, like Justice Hughes did in 1916.

Or perhaps I’m just speculating wildly based on two interesting charts that I cobbled together over the weekend.