Eighty Is the New 70 as Supreme Court Justices Serve Longer and Longer

By David IngoldDavid Ingold

The Senate confirmed Neil Gorsuch to the Supreme Court on Friday, ending more than a year of high-stakes political maneuvering to fill the vacancy created by the death of Antonin Scalia. The Gorsuch saga underscored the increasing importance of these lifetime appointments. On average, Supreme Court justices are serving longer tenures now than at any point in the court’s history, meaning a president’s pick could influence the nation’s highest court for decades.

Since World War II, the average age when a judge leaves the court, either through retirement or death, has been increasing. With two current justices more than 80 years old and a third joining them next year, the projected age when a justice will leave the Supreme Court is now about 83—that’s a 10-year increase from the 1950s.

At the same time, modern justices are joining the court at a younger age than in decades past. In 1900, justices tended to be in their late 50s when they joined the court. Today, the average age is about five years younger, and President Donald Trump’s nomination of Gorsuch, currently 49 years old, only furthers that trend.

Age of justice when they:

Joined the Supreme Court

Left the Supreme Court

Historical age trend:

Justices leave

Justices join

100 years old

90

80

70

60

50

40

30

1780

1820

1860

1900

1940

1980

2020

Age of justice when they:

Left the Supreme Court

Joined the Supreme Court

Historical age trend

100 years old

Justices leave

95

Justices join

90

85

80

75

70

65

60

55

50

45

40

35

30

1780

1800

’20

’40

’60

’80

1900

’20

’40

’60

’80

2000

’20

Joined the Supreme Court

Left the Supreme Court

Age of justice when they:

100 years old

At 90, Oliver Wendell Holmes Jr.

was the oldest justice

95

Historical age trend

Scalia served

until he was

79 years old

Justices leave

90

Justices join

85

80

75

The starting

age of current justices ranges from 43 to 60

70

65

60

55

Gorsuch

joins the

court at 49

50

45

40

William Johnson & Joseph Story

joined the court at 32

35

30

1780

1800

1820

1840

1860

1880

1900

1920

1940

1960

1980

2000

2020

2040

2060

Joined the Supreme Court

Left the Supreme Court

Age of justice when they:

100 years old

At 90, Oliver

Wendell Holmes Jr.

was the oldest justice

95

Historical age trend

Justices leave

Scalia served

until he was

79 years old

90

Justices join

85

80

75

70

The starting

age of current justices ranges from 43 to 60

65

60

55

Gorsuch

joins the

court at 49

50

45

40

William Johnson &

Joseph Story joined

the court at 32

35

30

1780

1800

1820

1840

1860

1880

1900

1920

1940

1960

1980

2000

2020

2040

2060

This is part of the calculation for modern presidents when choosing whom to nominate—a younger justice who can spend more time on the court maximizes a president’s impact. The justices appointed by Presidents Barack Obama and George W. Bush—Elena Kagan, Sonia Sotomayor, Samuel Alito and John Roberts—were all 55 or younger when they joined the court. And if they serve into their early 80s, Obama and Bush could see their influence on the court for the better part of 30 years.

Age of justice when they:

Joined the Supreme Court

Left the Supreme Court

Current justices today

100 years old

90

Ginsburg

Kennedy

80

Breyer

Thomas

70

Alito

Sotomayor

60

Roberts

Kagan

50

Gorsuch

40

30

1960

’70

’80

’90

’00

’10

’20

Age of justice when they:

Joined the Supreme Court

Left the Supreme Court

Current justices today

Three sitting judges are near the age

when justices typically leave the court …

100 years old

90

Ruth Bader Ginsburg

Anthony Kennedy

80

Stephen Breyer

Clarence Thomas

70

Samuel Alito

Sonia Sotomayor

60

John Roberts

Elena Kagan

50

Neil Gorsuch

… and five are at least 10 years below

the age when justices typically leave

40

30

1960

1970

1980

1990

2000

2010

2020

Age of justice when they:

Joined the Supreme Court

Left the Supreme Court

Current justices today

100 years old

90

Three sitting judges are near the age when justices typically

leave the court …

Ruth Bader Ginsburg

Anthony Kennedy

80

Stephen Breyer

70

Clarence Thomas

Samuel Alito

… and five are

at least 10 years below the age when justices typically leave

Sonia Sotomayor

60

John Roberts

Elena Kagan

50

Neil Gorsuch

40

30

1960

1970

1980

1990

2000

2010

2020

Joined the Supreme Court

Left the Supreme Court

Current justices today

Age of justice when they:

100 years old

90

Three sitting judges are near the age when justices typically

leave the court …

Ruth Bader Ginsburg

Anthony Kennedy

80

Stephen Breyer

70

Clarence Thomas

… and five are at least 10 years below the

age when justices

typically leave

Samuel Alito

Sonia Sotomayor

John Roberts

60

Elena Kagan

50

Neil Gorsuch

40

30

1960

1970

1980

1990

2000

2010

2020

That’s a big reason why Republicans generally praised Trump’s selection of Gorsuch, and why Democrats vowed to filibuster his appointment. Gorsuch, viewed as a typically conservative jurist, could be on the court until 2050 if current trends continue.

And even bigger fights could be on the horizon. Justices Kennedy and Breyer are close to the age when justices typically leave the court, and Ginsburg, who turned 84 last month, is already among the oldest justices ever to hold the position. Kennedy has been viewed as the so-called swing vote on the court, and Breyer and Ginsburg have been stalwarts of the court’s liberal wing. Trump could dramatically shift the court’s ideology to the right for decades to come if he were able to replace them with conservative judges.

Year that justice:

Joined the Supreme Court

Reaches typical age justices’ leave

Justices today

Trump’s term

Potential gap

between

vacant seats

Ginsburg

Kennedy

Breyer

Thomas

Alito

Sotomayor

Roberts

Kagan

Gorsuch

1980

’90

’00

’10

’20

’30

’40

’50

’60

Year justice:

Joined the Supreme Court

Justices today

Reaches typical age a justice leaves

Reagan

Clinton

Obama

Bush

Bush

Trump

Ginsburg turned

83 last year

Potential gap

between

vacant seats

Ginsburg

Kennedy

Breyer

Thomas

Alito

Older

justices

Sotomayor

Gorsuch turns

83 in 2050

Roberts

Younger

justices

Kagan

Gorsuch

1980

1990

2000

2010

2020

2030

2040

2050

2060

Year justice:

Joined the Supreme Court

Reaches typical age a justice leaves

Justices today

Reagan

Bush

Clinton

Bush

Obama

Trump

Ginsburg turned

83 last year

Potential gap

between vacant

seats

Ginsburg

Kennedy

Breyer

Thomas

Older

justices

Alito

Sotomayor

Gorsuch turns

83 in 2050

Younger

justices

Roberts

Kagan

Gorsuch

1980

1990

2000

2010

2020

2030

2040

2050

2060

Year justice:

Joined the Supreme Court

Reaches typical age a justice leaves

Justices today

Presidency:

Reagan

Bush

Clinton

Bush

Obama

Trump

Ginsburg turned

83 last year

Potential gap

between vacant

seats

Ginsburg

Kennedy

Breyer

Older

justices

Thomas

Alito

Sotomayor

Younger

justices

Gorsuch turns

83 in 2050

Roberts

Kagan

Gorsuch

1980

1990

2000

2010

2020

2030

2040

2050

2060

Obviously, a justice could leave the Supreme Court at any time for any reason. But if the current justices serve until the projected retirement age, Trump could potentially make two more nominations this term. A second term could give Trump one more pick, potentially allowing Trump to choose four of the Supreme Court’s nine justices over his tenure—which would be the most by any president since Richard Nixon. A gap in ages among the current justices means another vacancy wouldn’t be expected until the 2030s, which could leave the next president without any potential nominations. For Democrats and Republicans hoping to shape the court to their liking, the stakes couldn’t be higher.