The resignation of Sandra Day O'Connor from the Supreme Court means that the rest of the summer will be spent in a deeply acrimonious debate about the court's direction. A key reason for the intensity of fights over Supreme Court appointments is that they are made for life. This will be the one and only opportunity anyone will have to get it right. A mistake or error of judgment might still be with us 30 or 40 years from now.
Historically, people were appointed to the Supreme Court relatively late in life -- as a capstone to long careers in law or public service. Today, there is much more of an effort to appoint relatively young members to the court so that they will spend as much time there as possible. There is also greater pressure for those on the court to avoid retiring until severe physical infirmity demands it. Who doubts that Chief Justice William Rehnquist wouldn't rather be doing something else with his life right now, given his age, tenure and health?
Because the court has become so politicized, many justices now time their retirements to suit their politics, often delaying retirement until a president of their party or philosophy is available to nominate their replacement. Given that three of our last four presidents served two terms, this can often force justices to hang on far longer than they would rather have done. Justice O'Connor, for example, probably would have retired last year if it hadn't been an election year.
For these reasons, tenure on the court has increased over time and turnover has fallen. According to Northwestern University law professors Steven Calabresi and James Lindgren, since 1971 the average tenure in office for a justice has increased from 12.2 years (1941-1970) to 25.6 years. The average age of a justice upon leaving office has risen from 67.6 years to 78.8 years between the same periods. And the average number of years between appointments to the court has almost doubled from one every 1.67 years to one every 3.27 years. The current makeup of the court is one of the longest in history, lasting more than 10 years, since the appointment of Justice Stephen Breyer in 1994.
Bruce Bartlett is a former senior fellow with the National Center for Policy Analysis of Dallas, Texas. Bartlett is a prolific author, having published over 900 articles in national publications, and prominent magazines and published four books, including Reaganomics: Supply-Side Economics in Action.
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