Two related health trends mean that each Supreme Court nomination now has the potential to shape the nation’s highest court for far longer than in the past.
One is that Americans live decades longer than they did when the country was founded. At the same time, medical and public health advances have changed the dominant causes of death from infectious to chronic diseases. Infectious diseases typically kill fast, while chronic ones have a longer course. This shift toward a longer and slower decline, as opposed to more rapid death, means that justices are more able to select the administrations and political environments in which to end their terms — to, in effect, pass the baton.
Justice Anthony M. Kennedy, for example, was reportedly assured that his judicial legacy would be preserved should he step down. Senate confirmation hearings for the man nominated to succeed him, Judge Brett Kavanaugh, begin next week.
Life tenure meant something different when the founders were drafting the Constitution and guaranteeing federal judges lifetime appointment “during good behavior” to insulate them from politics. Life expectancy was around 40; political polarization was narrower; and the Supreme Court’s role was still uncertain.
The data confirms that the average life span of justices has steadily increased over the past two centuries. Justices confirmed before 1800 lived, on average, to age 67; those confirmed between 1950 and 1974 lived to 81.8. Only one justice (Antonin Scalia) confirmed between 1975 and the turn of the century has died, and the average age of this cohort to date is 82.8 years.
At the same time, the age at which people are becoming justices has been decreasing. Since 1900, the average age at confirmation has declined to 52.2 years from 55.4. Justice Neil Gorsuch, confirmed at 49 last year, may well serve into the middle of this century. President Trump’s current nominee, Judge Kavanaugh, is 53.
The result? The length of tenure for a Supreme Court justice has grown by about a decade since the Civil War. Justices confirmed just after the war served about 16 years, while those confirmed at the end of the 20th century have served, on average, 26 — a number that will continue to grow as incumbent justices serve out their terms.
That wasn’t the reality in the early decades of the Supreme Court. More than 80 percent of those confirmed in the early 1800s died during their tenures. By contrast, only 11 percent of those confirmed in the second half of the 20th century died in office; the rest retired. Modern justices are more likely to survive serious illnesses. Justice Ruth Bader Ginsburg, 85, for example, has survived both colon and pancreatic cancer (and recently said that “I have about at least five more years” on the Court). Justice Sonia Sotomayor, 64, has had Type-1 diabetes since childhood.
Supreme Court nominations have become increasingly rare. One recent analysis estimated that only 25 justices will be appointed in the coming 100 years, compared with 47 appointed in the last 100 years. That means the consequences of each nomination are growing larger and the political battles more heated. A justice experiencing mental decline may be more likely to stay on and retire during a presidential term in which a successor could carry on his or her legacy.
As judges routinely serve into their 70s and 80s and beyond, some courts — but not the Supreme Court — are taking significant steps to make sure judges are mentally sharp. The 9th Circuit Court of Appeals, for example, holds regular seminars to teach judges about signs of mental decline. It also encourages judges to have cognitive tests and designate colleagues or loved ones who can intervene if necessary.
The United States is rare among democracies in guaranteeing life tenure to judges on its high court. Most U.S. states have term or age limits for its judges — generally between 70 and 75. Vermont is an outlier with an age limit of 90. Recent polling shows that a majority of voters in both political parties support term limits for Supreme Court justices.
Of course, with modern medicine and longer life spans, Supreme Court justices can continue gaining experience and wisdom — in other words, they can keep getting better at their jobs. But in a polarized era, youth has become a priority along with judicial experience and quality in selecting a nominee.
A president has an incentive to choose a younger nominee who can spend decades on the Court — “We have to pick one that’s going to be there for 40 years, 45 years,” President Trump said in June — another example of the way that age and health and the Supreme Court have become intertwined.
Johnathan Yao, a student at the Rutgers Robert Wood Johnson Medical School, contributed reporting for this article.
Dhruv Khullar, M.D., M.P.P., is a physician at NewYork-Presbyterian Hospital, an assistant professor in the Departments of Medicine and Healthcare Policy at Weill Cornell, and director of policy dissemination at the Physicians Foundation Center for Physician Practice and Leadership. Follow him on Twitter at @DhruvKhullar.
Anupam B. Jena, M.D., Ph.D., is an economist and physician at Harvard Medical School, a physician at Massachusetts General Hospital and a faculty research fellow at the National Bureau of Economic Research. Follow him on Twitter at @AnupamBJena.