A New Measure for Understanding the Tenure of U.S. Supreme Court Justices, 1789-2009
Grofman, Bernard, Kline, Reuben, Judicature
In the recent legal litcreature there has been a spirited debate about the desirability of life tenure on the U.S. Supreme Court.' Perhaps the proposal that has attracted the greatest attention is one to replace life tenure with an 18-year term.-' While the heart of this debate involves nonnative considerations, e.g., about the need to renew the membership of the Court more frequently by appointing justices with fresh perspecti ves that are presumably more in tune with current thinking,1 as well as jurisprudential debate about the constitutionality of various mechanisms that could be used to constrain judicial tenure in the U.S.,1 the normative debate has been closely linked to an attendant empirical debate. This debate focuses on the extent to which justices on the modern Court (a) have longer tenure asjtistices,5and (b) are more likely to hang on to the bitter end of failing health and failing mental capacities than was true in earlier periods of the Court's history.1
There are four reasons commonly given as to why tenure on the Court might be increasing: ( 1 ) greater general longevity in the population,7 (2) greater control by the Court of its own workload, allowing elderly justices to continue to work late in life,8 (3) a greater importance of the Court increasing the motivations of justices to remain on die Court,9 and (4) the fact that appointees now come to the Court primarily from positions in law schools and on the federal bench and are thus more likely to view the Court as the apotheosis of their career. In contrast, we have found only one reason offered why tenure on the Court might be declining, namely, improved early pension options.1"
Our analyses will be limited to empirical aspects of the debate about Supreme Court tenure that can be directly examined with data on age at entrance, age at retirement and age at death. " Our principal contribution is to introduce a useful "bookkeeping identity" that is applicable to better understanding the dynamics of longevity on all courts (or other bodies) where there is lifetime tenure, but from which there is the possibility of retirement.
Longevity on the Court
An essay by two faculty members at Northwestern Law School asserts:12
[T] he average tenure of a Supreme Court Justice has increased considerably since the Court's creation in 1789, with the most dramatic increase occurring between 1971 and the present. In the first thirty two years of the Supreme Court's history, Justices spent an average of just 7.5 years on the Court, perhaps due in large part to the difficult conditions of circuit riding and a series of very short lived initial appointments, including a short recess appointment for Chief justice Ruüedge. The average tenure of Justices then increased significantly between 1821 and 1850 to 20.8 years before declining over the next four thirty year periods (spanning the period from 1851 through 1970) to an average tenure of only 12.2 years from 1941 through 1970. Then, from 1971 to 2000, Justices leaving office spent an average of 26.1 years on die Court, an astonishing fourteen year increase over the prior period, 1941-1970."
This claim is the basis of an edited volume by legal scholars addressing die "problems" caused by life tenure for justices.'4 As the editors say in their introduction,15 "The undisputed factual predicate is that justices today serve much longer than they did throughout our history" (emphasis added). However, the "facts" are much less clear than this quote would suggest.
The assertion in the quotes above that there was a dramatic shift upward in time spent on the Court before retirement is rebutted by two other legal scholars. ""' "While they recognize that the "average length [of service on the Court] may increase over time due to advances in medical care,"17 and they specifically allow for die possibility that the last members of die Rehnquist Court, who have already served together for a considerable span of time, could "nudge average term lengths upward in the coming decades," they assert that [as of 2006] "there has been no dramatic change [from the past] since 1971. …