Are the Justices Serving Too Long? an Assessment of Tenure on the U.S. Supreme Court

Article excerpt

The image of Chief Justice William Rehnquist, encumbered by illness, tentatively making his way down the west steps of the Capitol to administer the oath of office to the newly re-elected President George W. Bush offered a vivid illustration of the humanity of the Supreme Court. Virtually all of the justices are now well into the autumn of their careers; the entire Court, save Justice Clarence Thomas, is age 65 or older. Despite their age, the current justices have shown little sign of turnover. Justice Sandra Day O'Connor's recently announced departure is the first in over a decade. Indeed, no group of justices has served together this long since John Marshall was sitting on the Court.

In light of these facts, numerous observers of the Court have concluded that it is time to reconsider life tenure for the justices. Reviving proposals that have been in circulation since the 1990s, observers have begun to make various suggestions to transform the Court's membership-imposing term limits or elevatingjustices to senior status after a certain number of years, for example1-but these proposals presuppose that the current Court constitutes a deviation from the historical norm so substantial as to require legislative reform. Centering on such problems as judicial incapacitation and entrenched power, strategic retirements from the Court, and presidential incentives to select young nominees unseasoned for service, critics charge that lifetime appointments to the Court should be replaced with a system that secures more regular turnover and reduces the age of the justices.

But is reform actually warranted? Are the justices, in fact, too elderly, too stubbornly fixed, or serving too long? This article examines some of the historical trends in the length of service on the Court and concludes that, contrary to current assertions, the tenure of the justices has been quite stable over time. While the age of the justices is presently higher than the historical mean, it is not substantially so. Moreover, by some measures, the justices are spending no more time on the Court than their brethren who have served over the past 150 years. In fact, when viewing their tenure in light of changing life expectancies, the modern justices are actually controlling judicial policy for less time than the justices in any previous period. Given these historical trends, natural attrition will almost surely correct any perceived problems with the present set of justices.

Overview of the current Court

Judging by the Court's current composition, it is not difficult to discern the cause for concern. Two of the justices, William Rehnquist and John Paul Stevens, are octogenarians, having served longer than all but a handful of the jurists ever to sit on the Court. Chief Justice Rehnquist's 33 years-a record of service equal to that of William Brennan, Joseph Story, and the elder John Harlan-is among the 10 longest in history, and Justice Stevens' time on the Court-only four years less-places him among the top 15 longest serving. Following close on their heels at age 75 is Justice Sandra Day O'Connor. Even with a decade less service on the Court than the chief justice, she will retire one of the longest serving justices in history.2

As Table 1 illustrates, the balance of the Court is scarcely any less mature. Quite notably, there is relatively little variation in the ages of the remaining six justices; leaving aside Justice Thomas, only seven years separates the eldest, Justice Ruth Bader Ginsburg, from the youngest, Justice David Souter. Furthermore, two of these justices, Antonin Scalia and Anthony Kennedy, have been sitting on the Court for nearly 20 years.

Perhaps not surprisingly, several members of the Court have suffered serious health complications. Most recently, Chief Justice Rehnquist was diagnosed with cancer of the thyroid. In the 1990s, Justice Ginsburg underwent surgery for colon cancer, and Justice Stevens was treated for prostate cancer. …