The nine members of the Supreme Court of the U.S., with their ages written above their heads. — Photographer: Erin Schaff-Pool/Getty Images

Biden Nominee Jackson Could Serve for Decades With a Conservative Supreme Court Majority

By David Ingold, Cedric Sam and Mira Rojanasakul

Published: January 28, 2022, 12:00 PM EST | Updated: February 25, 2022, 4:00 PM EST

President Joe Biden’s nominee to the Supreme Court, Judge Ketanji Brown Jackson, could influence U.S. policy from the bench for several decades, underscoring the high political stakes of this lifetime appointment. Jurists are serving on the court longer than ever, on average, both because recent presidents have elevated relatively young justices to the bench and because they tend to serve until much later in life—generally into their 80s.

Justice Stephen Breyer will be just shy of his 84th birthday when he retires this summer after nearly 28 years on the Supreme Court. Recently-appointed justices would serve at least as long if they are on the bench into their 80s. Two of former president Donald Trump’s appointments joined the court before age 50, and the third, Justice Brett Kavanaugh, was 53. Jackson, who would be the first Black woman on the Supreme Court, is 51.

The current average age a justice leaves the court is about 81 years, which means some justices on the court would serve for more than three decades if they remained on the court until then.

Starting Younger, Departing Older

Average tenure of a Supreme Court justice now lasts almost three decades

Age when justice
joined
departed
nominated

Sources: The U.S. Supreme Court Justices Database, Bloomberg reporting

The political importance of Jackson’s nomination is significant for Biden and Democrats, even though she will be in the minority on a 6-3 court. There are currently six Republican-appointed justices on the Supreme Court, to three, including Breyer, selected by Democratic presidents. Democrats have no votes to spare in nomination proceedings, given their 50-50 margin in the Senate and the challenging headwinds the party currently faces heading into midterm elections this year.

Justices typically vacate the bench through retirement or death, and a justice’s decision about whether or when to leave can be nearly as political as the process that replaces them. Democrats had been vocal in their hope that Breyer would step down while the party could decide his replacement. That’s after the death of liberal Justice Ruth Bader Ginsburg in 2020, which allowed Trump to replace her days before the general election he lost. Ginsburg’s replacement, conservative Justice Amy Coney Barrett, turned 50 on Jan. 28.

Raising the stakes further—the ages of current Supreme Court justices suggest that this may be the last vacancy filled for a while. The next oldest justice after Breyer is Clarence Thomas, who is 73 years of age and joined the court in 1991. Justice Samuel Alito is 71. Both would be replaced by Biden’s successor even if he wins a second term in 2024, assuming they both serve until roughly the current average age when justices leave the court.

Note: Ages as of February 25, 2022. Supreme Court terms begin on Oct. 1 of each year. The beginning of each justice’s tenure is reflected by the start date of their first term, and the year when they would turn 81 is reflected by the end of that term.

Sources: The U.S. Supreme Court Justices Database, Bloomberg reporting

Even if Jackson, a relatively young, liberal justice, is confirmed to replace Breyer, the youth of the other members of the court makes clear that conservatives could hold sway for decades. The 6-3 advantage held by Republican-appointed justices means that the liberal justices need two of their conservative colleagues to vote with them in the majority.

Source: Andrew D. Martin and Kevin M. Quinn

Obviously, the ideological leanings of justices can change over their careers. Justice Sonia Sotomayor, 67, has become the court’s liberal stalwart, and Chief Justice John Roberts, 67, has sometimes taken more moderate positions as he’s overseen the court’s shift to the right. But the current conservative leanings could mean that Jackson, if confirmed, would often make her mark in dissent.

Correction: An earlier version of the chart “Starting Younger, Departing Earlier” displayed the date a judge was nominated rather than the date they joined the court.

Sources: Epstein, Lee, Thomas G. Walker, Nancy Staudt, Scott Hendrickson, and Jason Roberts. (2013). “The U.S. Supreme Court Justices Database”; Andrew D. Martin and Kevin M. Quinn. 2002. "Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999." Political Analysis. 10:134-153; Bloomberg reporting.

Methodology

Data for living justices was sourced from the U.S. Supreme Court. Historic justice data was sourced from The U.S. Supreme Court Justices Database.

Locally weighted regression was used to interpolate an average retirement age for each session of the court. The regression model was run using tenure data through the most recent retirement, Breyer’s. To avoid extrapolating the regression model, the most recent estimated retirement age was used as a baseline estimate for all current and future members of the court. To predict remaining tenure for each judge, their current age was subtracted from this baseline retirement estimate. This provided a predicted retirement date for each current justice, as well as a potential Biden nominee.

Editors: Alex Tribou and Chloe Whiteaker

With additional work by: Paul Murray

Biden Nominee Jackson Could Serve for Decades With a Conservative Supreme Court Majority

Starting Younger, Departing Older

Many Years Ahead

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