Five Facts on Lifetime Appointments to the Supreme Court
With President Trump’s nomination of federal appellate court Judge Amy Coney Barrett to fill the Supreme Court vacancy created by the death of Associate Justice Ruth Bader Ginsburg, here are five facts on lifetime appointments to the U.S. Supreme Court.
- The Constitution does not expressly give Supreme Court justices lifetime appointments.
Article III of the Constitution grants power to the Supreme Court, stating that justices "shall hold their offices during good behavior.” Under English common law, it has been interpreted as allowing justices to serve as long as they choose, only to be removed through impeachment. In practice this has constituted a lifetime appointment for federal judges since America’s founding.
- There are 870 federal judgeships with lifetime appointments.
Including the nine Supreme Court judgeships, there are also 179 on the U.S. Court of Appeals, 673 on the District Courts, and nine on the Court of International Trade with lifetime appointments. These federal judgeships are governed by Article III, and must be nominated by the president and confirmed by the Senate. The remaining 900 federal judgeships are either Magistrate judges – elected by a panel of U.S. District Court judges to 8-year renewable terms -- or Bankruptcy judges – elected by a panel of U.S. Court of Appeals judges to 14-year renewable terms. At the state level, Supreme Court justices are either elected or appointed by the governor, and lifetime appointments are extremely rare. Rhode Island is the only state with lifetime appointments to its Supreme Court. The other 49 states have fixed terms ranging from 6 to 14 years.
- S. Supreme Court justices are serving much longer than before.
Since the Court was established the overall average tenure of a justice is 16 years. The average, however, has been growing significantly over time. The first 10 justices served an average of under 8 years and from 1789-1970 the average tenure was around 15 years. Since the 1970s the average has increased by 11 years and is now roughly 26 years. Of the most recently retired or departed justices, Ruth Bader Ginsburg served 27 years, Antonin Scalia served 30 and Anthony Kennedy served 30.
- The U.S. is the only developed democracy with lifetime appointments to their judiciary.
As political scientists Steven Calabresi and James Lindgren point out, “every other single major democratic nation we know of … has chosen not to follow the American model of guaranteeing life tenure to the Justices of its equivalent to the Supreme Court.” Most developed democracies have term limits, age requirements, or both.
- Ending lifetime appointments to the Supreme Court would not necessarily require a new constitutional amendment.
77% of Americans support establishing term limits for Supreme Court justices, according to a PSB Insights poll from May. One proposal that has gained traction in recent years would create fixed 18-year terms and allow justices to continue serving on lower courts as senior judges after stepping down, as 11 retired justices have done in the past. It would not violate the “good behavior clause” which guarantees justices their office indefinitely and could be implemented by Congress through a statue.
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