NCPA - National Center for Policy Analysis


April 8, 2005

For 180 years through 1970, we had Supreme Court tenures of about 15 years, a practice that worked well. This system has broken down and it is time to fix the process of selecting our justices, say Steven G. Calabresi, the George C. Dix Professor of Constitutional Law and James Lindgren, the Benjamin Mazur Research Professor, at Northwestern University.. A first step would be to institute term limits for the members of the Supreme Court.

It has been almost 11 years since the last vacancy on the Supreme Court. The current group of justices has served together for longer than any other group of nine justices in American history.

What is more, the average tenure of justices has gotten a lot longer in the last 35 years:

  • From 1789 until 1970, justices served an average of 14.9 years.
  • Those who have stepped down since 1970, however, have served an average of 25.6 years.

With justices now staying 10 years longer than they have historically, vacancies are opening up a lot less often.

  • Between 1789 and 1970 there was a vacancy on the Court once every 1.91 years.
  • In the 34 years since the two appointments in 1971, there has been a vacancy on average only once every 3.75 years.

No powerful government institution in a modern democracy should go for 11 years without any democratic check on its membership. Nor should powerful officials hold office for an average of 25.6 years with some of them serving for 35 years or more. The rules allowing Supreme Court justices to do this are a relic of the 18th century and of pre-democratic times, say Calabresi and Lindgren.

Source: Steven G. Calabresi and James Lindgren, "Supreme Gerontocracy," Wall Street Journal, April 8, 2005.

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