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Dear Reader,

Nobody in our government holds more power, for more time, than a Supreme Court justice. 

It’s not even particularly close anymore. Presidents last for eight years, max. Six of the nine current justices already have that number beat. Four of them have at least doubled the tenure of a two-term president. Justice Clarence Thomas has served for over thirty years on the Court. A president would need to win seven elections to equal that.

Or consider Justice Stephen Breyer, who announced his retirement last week. Breyer was confirmed as a Justice of the Supreme Court on July 29, 1994. The Senate confirmed him by a bipartisan 87 to 9 vote; we may never see that again. Think of how much time has passed since then. Where were you in 1994? I was between my freshman and sophomore years of college. Some of our readers weren’t even born yet (the precocious ones; I know you’re out there). The number one song in the country was – apologies in advance – “I Swear” by All-4-One (though #2, “Stay” by Lisa Loeb, was better). We used CDs to play music and paper maps to get around and payphones to make calls. Barack Obama was a community organizer just a few years out of law school. Donald Trump was known mostly for his schmaltzy, soon-to-be-bankrupt Atlantic City casinos. In all, Breyer’s tenure spanned five presidencies: Bill Clinton, George W. Bush, Obama, Trump, and now Joe Biden.

The stakes around any Supreme Court vacancy have always been astronomical. And now more than ever, it’s a numbers game. 

Federal judges, of course, enjoy life tenure under our Constitution (which doesn’t actually contain the exact phrase “life tenure;” it says that federal judges “shall serve their offices during good behavior,” which allows for the possibility of impeachment and removal). No other federal official comes close to such permanent job security. Presidents are limited to two terms. Senators and Representatives can run for office forever, but they need to continually win re-election, and no single member (out of 535 total) holds more sway than a justice. 

Life tenure for federal judges won’t change without a Constitutional amendment, which requires two-third of the Senate, two-thirds of the House, and three-fourths of the states. I’ll save you some time: not happening. It’s worth noting that in the 1780s, when the Constitution was drafted and ratified, average life expectancy was a bit under 40 years; now it’s more than double that. So the Framers’ conception of life tenure might have been a bit different than what that term means in 2022. Alas, it’s written on parchment, and it’s not changing now. 

Nor should we spend much time pondering whether the Court will expand beyond its current nine members. Technically, this is possible, and Democrats could get it done by passing new legislation. But the political will is simply not there. Among other things, Biden himself has never expressed enthusiasm for expanding the Court. In fact, he flatly opposed it for decades until he took a more wishy-washy stance during his campaign before punting the issue over to a “Presidential Commission,” where it predictably will die without further action. (They’ve already issued a “Draft Final Report” – did you notice? And which is it anyway, a draft or final?)

So against that backdrop of political reality, let’s review the Court’s current demographics. Breyer, at age 83, is the oldest of the nine justices. The three youngest justices are the most recent appointees, all nominated by Trump: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all between 50 and 56 years old. These three conservatives could well remain together as a bloc for the next thirty years.  

The Court now has a 6-3 conservative lean. After Breyer retires and is replaced, the Court will still have that very same 6-3 split. But that doesn’t mean nothing changes. Assuming Biden chooses a nominee in her 40s or early 50s – and most of the leading potential candidates do fall in that range – liberals will gain something vital: they’ll renew their hold on a precious Supreme Court seat for the next three or four decades. 

Age has now become an indispensable consideration in the selection of a justice. One of the current contenders to replace Breyer, North Carolina state Supreme Court Justice Anita Earls, is 61. That’s not particularly old by any modern conception, but it also essentially disqualifies her. CNN has reported that Earls’s age will “hamper [her] serious consideration” for the vacancy. 

There’s a collective loss in the categorical exclusion of any candidate above, say, their mid-fifties. Justice Thurgood Marshall joined the Court when he was 59 years old. Justices Louis Brandeis and Ruth Bader Ginsburg both were confirmed at age 60, and Oliver Wendell Holmes was 61. If Earls is too old at 61, then all of these legendary Justices might have been excluded by today’s standards because of their ages. 

But as a practical reality, it would be self-defeating for either party to turn what could be a 30 or 40-year lock on a Supreme Court seat into a 10 or 20-year hold. Think of it as a matter of basic game theory. If one party plays the age game but the other doesn’t, it’s only a matter of time before the age-conscious party dominates the Court. If both parties opt for younger nominees, which now seems to be the norm, then they wind up back on even footing. But they also might overlook or exclude certain highly qualified candidates in the process.

Both sides have cause for hope. (And let’s make no mistake, there are “sides.” Despite Breyer’s grandiose declarations about the Court being non-political, we know and he knows that’s more aspiration than reality.) Conservatives have, and will continue to hold, the upper hand. They can rest secure in their current 6-3 advantage, which will remain unchanged on the surface by Breyer’s departure. 

But liberals might take heart in renewing their hold on Breyer’s seat for another generation or two. And things can change quickly. As recently as 2018, we had a 4-4-1 Court, with Justice Anthony Kennedy generally seen as the swing vote and the increasingly ideologically unpredictable Chief Justice John Roberts counted among the four conservatives. That even split turned into a decisive conservative advantage in just four years. Could things change quickly back in favor of the Court’s liberals? With Breyer’s departure, the two oldest Justices will be conservatives Clarence Thomas (age 73) and Samuel Alito (71). If Democrats somehow get to replace those justices, liberals retake the majority.

But back on the conservative side of the ledger, both Thomas and Alito could well hold office for another decade-plus. And, if recent trends hold, both conservative justices likely will try to time their departures to coincide with a Republican presidency, to enable conservatives to renew their seats – just as Breyer apparently is doing now for Democrats. Our elected politicians aren’t the only ones who play the numbers game. The justices themselves now seem attuned to it.

We’re all familiar with the essential traits of a Supreme Court justice. We want people who are wise, evenhanded, principled, and respected. And now, there’s a new, de facto qualification: the nominee simply can’t be too old. It’s not pleasant to acknowledge, but it’s reality. These seats on the nation’s highest court only rarely become available. And it would be a tactical mistake for either side to fail to lock down any available vacancy for as long as possible. 

Stay Informed,

Elie