Future of the Supreme Court

An actuarial look

Those disappointed in recent Supreme Court decisions will, I hope, refrain from simply accepting defeat. Issues like corporate personhood and religious privileges for family businesses are not settled for all time. In the Hobby Lobby case, for example, anti-abortion and anti-contraception groups will be trying to maximize the family-owned business exception from the Affordable Healthcare Act's coverage mandate. Defining the limits of this exception will inevitably result in future court cases that will gradually percolate to the level of the High Court, giving the Supremes an opportunity to revisit the issue.

Since the justices are normally loath to overturn their previous decisions, especially recent ones, opponents of Citizens United and Hobby Lobby need to be patient, even while striving to correct the injustices. Also, we need some time to elapse so that the best of all possible reversal opportunities can arise: new justices. The following chart displays the current ages and the years of service of the nine justices. Scalia and Kennedy are the longest-service justices, while Ginsburg is the oldest.

Nothing in this chart, however, is as important as how much longer the individual justices are likely to serve. To that end, let's turn to Table 7 (Life expectancy at selected ages, by race, Hispanic origin, race for non-Hispanic population, and sex: United States, 2010) in the CDC's Volume 61, Number 4, of National Vital Statistics Reports. Looking up the life expectancy for each justice and interpolating between tabular values when necessary, I created the following chart.

As you can see, Ginsburg, Scalia, and Kennedy are estimated to have about nine years left. Of course, this is not a hard number, but it suggests that even if they decline to retire to spend more time with their families—as the traditional explanation goes—we can reasonably expect a number of vacancies in the vicinity of 2023. Thus the president elected in 2020 would have some openings to fill. It's entirely possible that the president elected in 2016 would have no opportunities to nominate a Supreme Court justice, just as Jimmy Carter did not in his single term, nor Bill Clinton in his second term and George W. Bush in his first.

Patience, right? In other words, Hillary Clinton would need a second term to make it really likely that she could select successors to Ginsburg, Scalia, Kennedy, and perhaps Breyer.

What is missing from this scenario? The obvious, of course. A Democratic president elected in 2016 would encourage Ginsburg and Breyer to step down with the assurance that their seats would not go to nominees dedicated to overturning their judicial records. Scalia, by contrast, would hunker down and strive to outlast the Democratic administration (assuming he can continue to withstand the toxic overproduction of his bile gland).

The case of Sotomayor is special, and I made no attempt to take into account her diabetes, which argues against her supposed expectation of lasting till 2040. I also have no idea whether Roberts, who came to the Chief Justice's position at an unusually young age, will strive to set a new record at the top of the court's hierarchy. That would require that he serve more than the 34 years and 5 months achieved by John Jay. Whatever occurs, it seems unlikely that the string of Republican-appointed Chief Justices will end anytime soon. Harry S. Truman was the last Democratic president who enjoyed the privilege of appointing the Chief Justice when he nominated Fred Vinson in 1946.

Patience. Probably quite a lot of it.