That’s background reading for what follows, but you need not dip into that, because they’re basically about how old Justice Ginsburg was. Her age, and then Stephen Breyer (82 years old), were the primary drivers of the results.
Trump says he’ll announce on Saturday (yeah, I couldn’t wait one day), but I assume whoever he picks will likely live for decades more, so there’s no real reason to do a new projection.
Yet.
What to do with lifetime tenure when life keeps getting longer?
And now, somebody is trying to make an “actuarial” argument that Federal judgeships should not be lifetime appointments.
Before I get into the specifics the author, Charles Lane, mentions, I want to talk about two other “lifetime appointments” people have called into question because so many live so much longer than when originally instituted: marriage and tenured professorships. I will return to these later.
Here is the argument, such as it is:
Crucial information about the causes of the looming political battle over the Supreme Court, can be found — of all places — in the May-June 2017 issue of Contingencies, the official publication of the American Academy of Actuaries.
In an article provocatively titled “The Supreme Court has a Longevity Problem,” David Fishbaum of the management consulting firm Oliver Wyman explained how a social achievement that the Founders never imagined is destabilizing their constitutional design: average life expectancy has increased from roughly 40 years in the late 18th century to almost 79 years today.
At the time, Bloomberg did a nifty graph showing how start & end ages have changed over the history of the court:
The age at joining the court really hasn’t budged much, and that’s not too surprising: they need to be old enough to have had sufficient legal experience, so they will generally be in their late 40s at the youngest; the age at which they leave has been steadily climbing since 1940. Now, there are a couple things going on there, which I will return to. I want to address the particular arguments being made.
With the announced nomination of Judge Brett Kavanaugh to fill the vacancy created by the retirement of Justice Anthony Kennedy, President Donald Trump has the privilege of nominating a second Supreme Court justice in his first term. But it’s an opportunity that could become rare moving forward given that justices, like the rest of the population, are living longer.
The fact that people who make it to their senior years can expect to live beyond the age of 80 means the average Supreme Court justice’s tenure also will be longer. As a result, significantly fewer Supreme Court justices will be appointed over the next century than were appointed in the last. Justice Neil Gorsuch, whom Trump appointed at the relatively tender age of 49, could conceivably remain on the court through nine more presidential terms, given that he can expect to live another 36 years, our actuarial analysis shows.
Okay, I do need to address this framing.
Meep critiques the analysis
First off, 49 isn’t really all that young for Supreme Court justices.
Among recent justices, they were the following ages when they joined the court [I may be off by up to 1 year due to timing]:
43 Thomas
49 Gorsuch
50 Kagan, Roberts, Scalia
51 Souter
52 Kennedy
53 Kavanaugh
55 Sotomayor
56 Alito, Breyer
60 Ginsburg
Heck, you could argue that RBG was old for an appointment, if it comes to that.
Thomas was the youngest of the bunch, but as we see from the Bloomberg graph, a couple of justices were 32 when they joined the Supreme Court, and that does seem pretty young, even if it had been in the 19th century. Given that the average of these ages are in the low 50s, 49 really isn’t much different.
So let us assume the “average” Supreme Court Justice is 50 years old at their appointment, and out of sheer orneriness, stays in their seat until death. What do current retirement longevity calculators say?
We will assume the person is currently age 50, try both sexes (obviously, women live longer), nonsmoker, and assume excellent health, even though that is not necessarily true. Let’s look at the probability of living to 90 (the oldest serving justice was Oliver Wendell Holmes, Jr., at age 90, when he retired in 1932).
Probability of reaching age 90 (40 years tenure): Male: 43% Female: 53%
Median tenure (assuming leave at death) Male: 38 years Female: 40 years
According to this FAQ page of the Supreme Court, the average tenure throughout the history of the court has been 16 years, but that’s in the past. Recent justices have obviously served for longer. If Justice Thomas’s tenure were a person, it would be eligible to run for the Senate in 2022. [Okay, that’s a weird comparison, but fine – he’s the most senior justice by appointment date.]
In any case, Fishbaum’s calculations on potential longevity seem reasonable to me, but I expected that from a fellow actuary.
What percentage of Supreme Court Justices die in office?
I really went down a rabbit-hole, because I assumed most Supreme Court Justices did retire and didn’t die while in office.
Although 44.5% of all justices have died in office and 47.3% have retired from office, death in office occurs in 2.6% of justice-years, and retirement occurs in 2.8% of justice-years.
Um… wait…. that doesn’t add up to 100%. About 8% are missing… so are they saying the 9 justices at the time were included in that analysis? [this paper is from 2006…and order of magnitude, that’s about 100 total Justices in history, and that makes sense.]
In any case, if we remove the 9, clearly the majority of justices retire… but the percentage who died in office is a lot higher than I thought it would be.
By the way, the academic paper I linked: Retirement and Death in Office of U.S. Supreme Court Justices has to do with building a retirement model to test their hypothesis about the “politicized retirement”, where a Justice retires much younger than one expects because the current President is of their preferred party.
The result:
Thus, other things equal, retirement odds increase by 168% (= e0.9850 – 1) when the incumbent president is from the same political party as the president who nominated the justice and the presidential administration is in its first or second year (compared with the odds when the incumbent president is from a different political party and a presidential administration is in the third or fourth year of its four-year term).
Yes, they tested other things as well, but I thought that result interesting. Of course, RBG’s delay may have screwed up those odds. Interestingly, their model shows increasing probability of leaving the court via retirement in their statistical analysis, which is hardly shocking. Retirement wasn’t much of a 19th century concept – that was more 20th century, which is its own story.
Anyway, somebody should update that paper (maybe somebody already has).
Fishbaum’s recommendation: staggering 18-year terms, limited to one
And it’s not just Justice Gorsuch. The average tenure of justices is likely to increase to 35 years on the bench over the next century, compared with 17 years over the previous 100 years, based on the justices from Kennedy back to those on the bench in 1917. That means there likely will be only another 25 appointees over the next 100 years, starting with the Trump presidency and including Justice Gorsuch and the replacement for Justice Kennedy. This contrasts with the 47 appointments in the previous 100 years, beginning at the start of Woodrow Wilson’s second term in 1917 and ending with the last day of the Obama administration. There were 61 appointments in the 100 years from 1861 through 1961, the end of Dwight Eisenhower’s administration.
…. One proposal being discussed is to limit justices’ terms to 18 years to mitigate the challenges longevity is creating. But when we modeled the impact of this term-limit proposal, new problems arose. When applied to all future justices as well as those currently on the Supreme Court, the plan increased the number of new appointees over the next 100 years to 49 from 25. But it also increased the chances that a president could appoint a majority of justices. …… Our study suggests that a plan that staggers terms and attaches the limits to the specific seats justices occupy, rather than to individual justices, would be more likely to ensure sufficient turnover on the Supreme Court while preventing any single president from having too much influence. Under an approach where one seat comes up every four years during the second year of a presidential term, the number of new appointees over the next century would increase to 41 from 25.
There are a variety of proposals out there, but it seems to me most have settled on some form of the 18-year term situation, with transition being a little tricky, and it would require a Constitutional amendment. I think the general U.S. population would be fine with this, but the main political players may not be happy with this.
Back to Charles Lane in WaPo
Yes, this is how it is in my brain — I often push down levels and then pop back up. I know I’ve confused people when I talk with them because I will go off on a tangent, but I will come back to the original topic because I still have points to make there. I have learned to give people more context when I’m popping back, because people may forget what we were talking about an hour ago.
Gone are the days when anyone considers the federal judiciary the “least dangerous” branch, in Alexander Hamilton’s famous phrase.
The Supreme Court may have “no influence over either the sword or the purse,” as Hamilton wrote, but by aggressively reviewing the constitutionality of state and federal statutes and executive actions, the court has evolved into a kind of super-legislature whose rulings determine the rights and livelihoods of millions.
And when some of that power may be transferred to a 49-year-old man with, on average, 33 years ahead of him – as occurred with President Trump’s appointment of Neil M. Gorsuch in 2017 – the constitutional guarantee of judicial life tenure begins to look less like insulation against political pressure and more like a way to enshrine the preferences of a transitory presidential administration and Senate majority for decades. …. The response some Democrats advocate – increasing the nine-member court’s legally authorized size and packing it with liberals – might avenge 2016 and resolve their short-term policy concerns while plunging the court, and the country, into even deeper division and crisis.
What the country needs – badly – is to lower the stakes attached to personnel changes at the Supreme Court and the lower courts. Since limiting or abolishing judicial review might not be desirable even if it were possible, the best alternative is to end life tenure for federal judges in favor of a specific term limit or a mandatory retirement age.
And yeah, I agree with Lane and Fishbaum.
Some of the short-term “fixes” are to deal with a court with an increasing length of tenure, with the only external check on the Justices being impeachment. There have been federal judges that have been impeached (such as Alcee Hastings, convicted of receiving bribes (among other things), who then turned around and got elected to the House of Representatives), but if you think SCOTUS nominations are political, imagine SCOTUS impeachments over policy differences. That would be even worse.
Better to have a more orderly mechanism. The 18-year term with appropriate controls for staggering appointments to every other year may be the solution we’re looking for.
That shift matters because, for longer than I have been alive, all sorts of very important societal issues, from desegregation to abortion to presidential elections and state legislative districting — have gone to the Supreme Court for decision. Supreme Court nominations and confirmations didn’t used to mean much — Louis Brandeis was the first nominee to actually appear before the Senate Judiciary Committee [1916] — because the Court, while important, wasn’t the be-all and end-all of so many deeply felt and highly divisive issues. Now it very much is.
It used to be that Congress actually had to legislate, rather than pass whatever laws and hope the Supreme Court struck down the bits they didn’t like, or to have unaccountable bureaucratic agencies make the “real” laws.
So to break it down: All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues. And that Court is small (enough so that a single retirement can throw things into disarray) and unrepresentative of America at large.
In an earlier article, responding to Democrats’ plans to “pack” the Court with several additional justices whenever they get control back, I suggested going a step further, and add fifty new justices, one each to be appointed by every states’ governor. My proposal wasn’t entirely serious, being meant to point up the consequences of opening the door on this topic. But on reflection, maybe it was a better idea than I realized.
Under my proposal, the death or retirement of a single justice wouldn’t be much more than a blip in the news, instead of something serious enough that there are people talking about violence in the streets. A Supreme Court composed of 59 justices wouldn’t have the mystique of the current Court — you might believe in 9 Platonic Guardians, but the notion of 59 such is absurd. And since governors would presumably select people from their own states, it would bring a substantial increase in diversity to the Court.
The lack of diversity on the court, by the way, has nothing to do with the gender or racial diversity of the justices (you can do only so much with 9 people). Or even the political party of the governors doing the appointment versus the Presidents.
It’s that all 8 of the current justices got their law degrees from either Harvard or Yale. There are other law schools, ya know. [Potential Trump nominees floated do not have their degrees from Harvard or Yale, so that’s encouraging.]
In case you’re wondering about other recent Supreme Court justices, Antonin Scalia served 30 years, Clarence Thomas is in his 29th year, Sandra Day O’Connor served 25 years, David Souter served 19 years, John Roberts and Samuel Alito are both at around 15 years, Sonia Sotomayor is in her eleventh, Elena Kagan has served about a decade, Neil Gorsuch is at three years, and Kavanaugh is almost at two years.
….. Why do people who are interested in politics and government become so passionate about who is on the Supreme Court? Because the Court is worth it. The Court isn’t supposed to be a super-legislature that can elbow aside the other branches of government, but the Constitution does give it the final say. If you have five justices who feel strongly enough about what the law ought to be, all they need is a case to hear to set the precedent. Everybody else in government has to face the voters in one form or fashion or another, and everybody else can get voted out of office for making a decision that enough people oppose.
It does feel like the Supreme Court is getting farther and farther away from correction, so some change to the system is required.
The problem of lifetime tenure in an aging society
Lifetime tenure is a problem… and that’s true for pretty much all professions that have it.
One of the reasons I gave up on pursuing an academic career was it was getting depressing to have to wait for somebody to die in order to get something better than an adjunct position. It’s not only because of lifetime tenure, but it is a huge demographic feature of the problem of university staffing. `
First, there was a boom in professors in the late 1960s into the 1970s, as the Boomers started going to college, and as college attendance became more widespread in the population.
The quality of math professors from that generation…. was variable. That was from a generation still with a lot of smoking, and most of them are long gone now. But then came the wave of Boomer profs… and many of them won’t go away.
Maybe it wasn’t a huge problem when it was Gen X coming behind – we were smaller than the Boomer generation. But the Millennials – now in their 30s – were bigger than the Boomers. And their way in academia is stuck due to the Boomers who won’t leave.
The problem with life tenure for anything is trying to get the person to leave, when they’re gumming up the works for people who are trying to come after. Some universities bribe profs with “emeritus” status, so they still have an office, but they’re taking retirement income, not teaching, etc. Not all profs are interested in that, though.
Other professions with de facto lifetime tenure generally don’t have this issue, as the jobs are mildly unpleasant enough that people retire as soon as they’re reasonably able to.
Both universities and most companies in the U.S. are stymied by age discrimination legislation, and only a very few professions (such as airline pilots) have a maximum allowed age. In some states, they have passed mandatory retirement ages for judges. On Ballotpedia, you can see the list – many cap the tenure at age 70, some at 75. Vermont is 90, the highest mandatory retirement age for state judges.
The political power of the elderly
Let me get away from the universal problem and focus on the political problem. So many of the people with official power in the U.S. are extremely old — they’re older than Boomers, and that’s old. It still amazes me how the “Silent Generation” (the pre-Boomers, 1925 – 1945), though much smaller than the Boomers have still managed to hang onto these positions.
I was flabbergasted to find out Senator Dianne Feinstein is 87 years old [doesn’t look too bad for her age, actually]. Speaker of the House Nancy Pelosi is 80 years old. Mitch McConnell is 78 years old. Steny Hoyer is 81. Next to that, Chuck Schumer looks young at 69 years [and he’s a Boomer! Woo!] The Republican House leader, Rep Kevin McCarthy, is a youngun at 55.
Most of these people have been in their positions for a long time, and come from districts/states where they’re extremely unlikely to get voted out.
(and I checked on Mike Madigan (Illinois), who was born in 1942 (78), and thus a pre-Boomer)
It’s against the American tradition to have mandatory retirement ages, and with an aging society, it will be difficult to make it stick. The elderly have a lot of political power before the Boomers became elderly themselves… they sure as hell will have a lot of ballot-box power for some decades.
Reaction round-up
Here are some of the proposals and commentary put forth:
Sorry, a bill won’t do it. This would require a Constitutional amendment, and I have no issue with this concept.
II have no issue with the Democrats putting out a bill, because they know it’s going nowhere. But if we’re to have real progress, someone will need to do the work to get a Constitutional amendment going. I think we’re seeing a lot of agreement across the political spectrum on this one.
Of course, the main political leaders may not be interested in making this change, because the opportunity to appoint a disproportionate amount of judges has been such a great lever to get certain groups of people to vote.
Some people voted for Trump solely for that reason; similarly for Clinton.
Final lifetime tenure issue: marriage
I’m not going to link to the various pieces about lifetime marriage being unrealistic when we are living longer and longer.
I do want to say that marriage is an issue different from lifetime tenure in a profession, though. It’s not like a marriage has particular profit/other goals one is trying to achieve and thus lifetime contract is preventing the entry of a better “worker” to achieve said goals.
But really, I’m being self-indulgent here.
The whole reason I’m writing this section is that in a few weeks it will be my & Stu’s 20th anniversary, and we had met 4 years before that. Stu has been my best friend for at least 22 years, and I hope for more.
i have returned from n.c. and QC a married woman. though i won’t legally change my name (thus one can still call me meep or ms. meep), i give leave to all to call me mrs. meep.
While Stu has posted on a few episodes of our lives since we’ve married (and we had quite a few adventures/NYC days before that), I thought I’d remark on the soundtrack of our married life.
You can go to the post to see what the main songs were discussed, but here was the song at our 10th anniversary, and I think a lot of people can use this one as an anthem this year:
