How Contentiousness and Tenure have Changed in the Supreme Court

by John Johnson

In case you haven’t heard, Supreme Court Justice Antonin Scalia died on February 13. This means there is a vacancy on the 9-member Supreme Court. According to the Constitution’s Appointments Clause President Obama will shortly nominate a successor.[1] The GOP controlled Senate will probably oppose his nominee. In all likelihood, we will have to wait until the new President and Congress takes office in January before this is all resolved.

Of the eight remaining justices on the Court, four are confirmed liberals—Ginsberg, Breyer, Kagan, and Sotomayor. Three are stalwart conservatives—Roberts, Alito, and Thomas. The final justice—Anthony Kennedy—is a Republican appointee who leans right but is more of a swing vote than anyone else. For example, he wrote the majority decision in Citizens United v. FEC, which ruled that money equals protected speech, and also Obergefell v. Hodges, which legalized same-sex marriage.

Since the Court now contains an even number of justices, we will likely experience a few tie votes. In these cases, the ruling of the lower court will remain unchanged, but it will not set a precedent for the rest of the country.

Nonetheless, there is going to be a lot of shouting between now and then. Frequently criticized is the practice of lifetime appointments for justices.[2] There is also much hand-wringing over the “increased partisanship” of the Court.[3]

Probably the most peculiar aspect of the Supreme Court is lifetime appointment. Job security for SCOTUS justices is unrivaled. They can only be removed for poor behavior. This has never happened, and only one justice has ever resigned under threat of impeachment (Abe Fortas in 1969).[4]

Because people live longer today than in 1789 when the Supreme Court came into being, many scholars have argued that we should assign justices fixed terms. Eighteen years is one popular number.[5] The idea is that justices will still be insulated from political pressure (they will still never have to think of reconfirmation), but also that decrepit old age will be avoided and fresh ideas will be more regularly interjected into the court.

In the chart below I’ve averaged the age at appointment, age at death, and length of tenure for the justices appointed in each decade since the Supreme Court began.

Line Chart - SCOTUS Trends

As you might expect, the average age of death for a Supreme Court justice has gone up significantly in the second half of the 20th century. However, the average justice is still being appointed in his or her fifties. As a result, the typical tenure of a Supreme Court justice has risen by about a decade.

Another common lament about the Supreme Court is that what should be characterized by high-minded legal consensus has (like everything else) devolved into rancorous partisanship. The next two charts show that, while there is some truth to this indictment, we shouldn’t get carried away with rosy views of past bipartisanship. Conflict over the Supreme Court is nothing new.

The first chart depicts the percent of Senators who were opposed to each nominee. (Open the map in a new page, and you can use the tooltip to see the name of each one).

Percent of Senators Opposed to SCOTUS Nominees

SCOTUS Nominees - % Opposed to Confirmation

Red dots represent candidates who were rejected by the Senate. Green dots were confirmed by the Senate. Blue dots are candidates who were confirmed by the Senate through a voice votes. Voice votes generally indicate consensus, and the number of opponents to a nominee (if any) are not recorded.

As this map shows, tightly contested votes are nothing new. The first Supreme Court nominee was rejected in 1795. However, the number of noncontroversial candidates (as indicated by voice votes) has dropped off significantly. The last voice vote took place in 1965; although, the latest nominee to receive zero “no” votes was Anthony Kennedy in 1987. Nominees since 2000 have all had a much more difficult time.

However, another way to measure changes in the contentiousness of nominees is by comparing how much time elapsed between the President’s nomination and the Senate’s vote. The process can be dragged out when less support exists for the proposed justice.

(Once again, open this chart in a new tab to use the tooltip to view the nominee name, result, and final vote tally).

Length of Nomination Period

SCOTUS Nominees - Days Nomination Active

Here the trend of increased time between nomination and confirmation is clear. Red dots represent rejected nominees. Orange dots represent nominees who were withdrawn (for whatever reason), usually without receiving a vote. Move your cursor to view the outcomes of the remaining nominations.

To conclude, nominees to the Supreme Court in recent decades have frequently encountered stiffer opposition than was normal in the past. Since 2000, no nominee has received more than 80% support among Senators. Likewise, the Senate takes much longer to vote on nominees than in the past. The average nominee since 2000 has waited about 55 days before knowing their fate. However, once seated on the bench, a justice can expect to serve as much as a decade longer than most of their predecessors.

[1] Article II, Section 2, Clause 2