Do United States Supreme Court Justices Write Less Frequently as They Age?

Abstract

Proponents of eliminating life tenure for United States Supreme Court justices often contend that the status quo encourages justices to cling to their positions long after their productivity and overall capability have declined. In this account, the tendency of justices to overstay their welcome results from a combination of the Court’s shrinking docket, availability of law clerks to assume the burden of case selection and to aid in drafting opinions, and the unwillingness to let one’s political opponents fill one’s seat. But do justices actually become less productive as they age? This study examines one particular manifestation of productivity that rests fully within the control of individual justices: the propensity for writing separate opinions. Using data from the Burger and Rehnquist Courts, it finds, on balance, that while older justices do experience a decline in their authorship of concurrences and dissents, this decline is small relative to other factors influencing the propensity to write, such as justices’ ideological location on the Court and case-specific considerations.