When America’s founding fathers were drafting the Constitution, life-expectancy was low and the “lifetime” appointment for a Supreme Court justice was not expected to be very long. Today, however, that is a different story.
Drhuv Khullar, M.D., M.P.P., and Ruth L. Newhouse Associate Professor of Health Care Policy Anupam B. Jena, MD, PhD, explore the growth of Supreme Court Justice term lengths in The New York Times. Khullar and Jena state that modern medical and public health advances have increased life expectancies, which in turn increases term lengths for Supreme Court justices that serve for life. The dominant cause of death used to be infectious diseases, which kill swiftly, but modern medicine has made chronic diseases, which lead to a slower decline, the main killer. This allows older justices the opportunity to retire instead of die in their role, and be able to select the administration in which they end their term.
In 1789, the average lifespan for a Supreme Court justice was 67 years. By 1975, that expectancy had risen to 82 years. The length of a justice’s tenure has changed from 16.2 years in 1850 to 26 years in 1999. This increase of about a decade will continue to rise as current justices serve out their terms.
Today, more justices retire than die in their positions. In the early 1880s, more than 80% of justices died during their tenure. Only 11% of those confirmed in the second half of the 20th century died in office, and only one justice, Antonin Scalia, has died during tenure since 1975. Justices now are more likely to survive serious illnesses, and most choose to retire.
Because justices live longer, healthier lives, Supreme Court nominations have become increasingly rare. Khullar and Jena cite an analysis that estimates that only 25 justices will be appointed in the next 100 years, as opposed to the 47 appointed in the last 100 years. Justices are being appointed at younger ages: in 1949 the average age at confirmation was 55.4, while today the average age is 52.2. Justice Neil Gorsuch, the most recently appointed justice, was only 49 when confirmed in 2017.
Khullar and Jena explain that the longer tenure of Supreme Court justices can allow them to gain more experience and wisdom. It can also act as an incentive for a president who can leave a lasting impression on the Supreme Court with his or her nomination.