Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice

Abstract

Against the backdrop of a decade-long wait for a Supreme Court vacancy, legal academics from across the political spectrum have recently proposed or supported significant constitutional or statutory reforms designed to limit the terms of Supreme Court justices and increase the pace of turnover at the Court. Fearing a Court that is increasingly out of touch with the national mood and staffed by justices of advanced age, advocates of term and age limits contend that the trend in Supreme Court tenures is inexorably upward. But are Supreme Court justices really serving longer now than in the past? If so, why? And what might such trends mean for American constitutional democracy? In a debate otherwise dominated by law professors—and largely without careful empirical analysis—we place the issue of judicial tenure in historical perspective, with special attention to the institutional development of the Court, the changing politics of the appointments process and the types of individuals who emerge from it, and to a lesser extent, broader socio-demographic trends in technology and medicine. In the process, we show how proponents of reforms designed to end life tenure have ignored a significant factor influencing patterns in judicial service: the decline of the “short-term” justice. Trends in judicial tenure, we argue, cannot be explained by more justices serving unusually long terms; rather, they are driven at least in part by the fact that fewer justices are serving relatively short terms. In this article, we consider why justices have retired after only short service throughout much of history, why they rarely do so today, the conditions under which future justices might be compelled to serve shorter terms, and the democratic gains and losses associated with short-term service on the Court. In sum, by following the rise and fall of the short-term justice over the course of American political development, we offer a new perspective, grounded in political science, on an issue currently occupying the attention of lawyers, journalists, and policymakers alike.Justin Crowe is Assistant Professor of Politics, Pomona College (justin.crowe@pomona.edu). Christopher F. Karpowitz is Assistant Professor of Political Science, Brigham Young University (karpowtz@byu.edu). We thank Chris Achen, Steve Burbank, Chris Eisgruber, Mark Graber, Ken Kersch, Kevin McGuire, David Stras, Keith Whittington, and two anonymous reviewers for encouragement and helpful feedback. An earlier version of this article was presented at the 2006 annual meeting of the Western Political Science Association, Albuquerque, NM.