117 years of data show why today’s Supreme Court nominees have more influence than ever

Get ’em while they’re young.
Get ’em while they’re young.
Image: Reuters/Jim Bourg
We may earn a commission from links on this page.

Donald Trump announced last night (July 9) that Brett Kavanaugh is his pick for the open seat on the apex of America’s judiciary, the Supreme Court. Liberals, of course, fear the potential impact of the new nominee’s conservative track record. More morbidly, many also bemoan his youth: Kavanaugh turned 53 in February, which means that he could influence the future of the American legal system for a good long while. If confirmed, Kavanaugh will join the even springier of SCOTUS spring chickens, 50-year-old Neil Gorsuch, whom Trump appointed in February 2017.

Indeed, Supreme Court appointees have been skewing somewhat younger of late. In the 1930s, the average age of the 10 most recent confirmed justices was about 58. Gorsuch’s swearing in brought put that figure at 51.7 years. That’s about where it was under chief justice Roger Taney—back in 1837 and 1853.

But the most striking difference isn’t the age at which Supreme Court nominees are appointed—from the inception of the Supreme Court in 1789-90, for example, the average age at which justices joined the court was around 53. Rather, what’s changed is life expectancy—and what it means to get a lifetime appointment.

Although data is spotty, the average American male in the 1800s could expect to make it to his early- or mid-40s (pdf, p.277). It’s not surprising, then, that most of the youngest justices come from that era.

But over the course of the 20th century, life expectancy changed dramatically, as data from 1900 to 2015, provided by the US Centers for Disease Control, show. The average white male born in 1902, the year Oliver Wendell Holmes Jr. joined the court at age 61, could expect to live 50.2 years. In 2015, the last year for which data was available, the average white male lived 76.3 years (pdf, p.117).

Mind you, for a slew of reasons, the official life expectancy data reflect an overall trend toward longevity, and aren’t necessarily a predictor of justices’ tenure. For one thing, the commonly cited figures from the US Centers for Disease Control reflect how long the average person born that year could expect to live. As it happens, though, it wasn’t uncommon for justices of yore to outlive the average babies born the year of their swearing-in. Holmes, for example, spent three decades on the court and died at the ripe old age of 93. Moreover, more recent research consistently links longer life expectancy with educational attainment. The people nominated to the Supreme Court usually have plenty of degrees to their name, so it’s reasonable to expect they would live longer than the average person of their era.

But the bigger point here is that justices who live a long time tend to stay on the bench for a long time, too. Taney spent nearly three decades on the court, holding office until his death in 1864, at 87. At the time, his tenure was considered remarkable, as was Holmes’. Now it’s no big deal to have an octogenarian on the bench. For instance, William Rehnquist and Antonin Scalia both served three decades on the court, until their deaths at 81 and 79, respectively.

This isn’t just true for white men. Clarence Thomas, one of the youngest SCOTUS appointments in history, is still going strong at 71—just shy of the 72.2 years black males born in 2015 can expect to live.

Then there are gender differences in longevity to consider. American women born in 2015 can count on living around 5 years longer, on average, than the less fair sex. Of course, the Supreme Court’s sample size is absurdly small. But Sandra Day O’Connor, the first female justice, was confirmed in 1981, at age 51. She stayed on the court until 2006, when she retired at age 76. On the current court, Ruth Bader Ginsburg is still at it at 85. So if Trump or future presidents really want to maximize their impact with future appointments, they may want to consider putting more women on the bench.