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

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.

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.

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.

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.