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Nineteenth-Century Justices
Twentieth-Century Justices
Term Limits Debates

Justice Clarence Thomas became the sixteenth justice in U.S. history on October 23, 2021, to complete at least thirty years of service on the Supreme Court. Thomas’s three decades on the Court illustrate the twentieth century trend of justices serving on the Court for longer periods and serving into their seventies or eighties. Those developments have increased discussion among some Court watchers of proposals to impose a mandatory retirement age for justices or to establish an eighteen-year term limit for active service on the Supreme Court. In thisCourt Report, court expert Kenneth Jost looks at the impacts long-serving justices have had and the renewed discussions around term limits.

The conservative Heritage Foundation celebrated Thomas’s milestone at an October 21 event keynoted by the longtime Senate Republican leader, Kentucky’s Mitch McConnell, who hailed Thomas as “a legal titan” and praised the justice for what McConnell called his “courage and fidelity.” At age seventy-three and apparently in good health, Thomas could surpass the record, thirty-six-year tenure of Justice William O. Douglas (1939–1975), to become the longest-serving justice ever.

Among 115 individuals who have won lifetime appointments to the Supreme Court, only fifteen others before Thomas reached the thirty-year milestone. Overall, the sixteen longest-tenured justices are by no means the best known or the most legally significant. The list includes two chief justices, including the great chief justice John Marshall, who laid the foundation for the Court’s power in his thirty-four years on the Court (1801–1835). Three of the other thirty-year justices served as Marshall’s allies in those early years in making the Court a powerful force for Congress and the executive branch to reckon with.

In all, eight of the thirty-year justices died in office, including Marshall and the only other chief justice in the list, William H. Rehnquist, who served fifteen years as associate justice (1971–1986) before another nineteen years as chief justice (1986–2005). Among the others, two retired involuntarily, forced from the bench by their colleagues because of evident age-related issues; two others retired voluntarily in ill health; and three others retired strategically with a politically compatible president in the White House expected to appoint a likeminded successor.

Eight of the thirty-year justices served in the nineteenth century, including seven appointed in the 1800s and one appointed in 1798. The other eight, including Thomas, were appointed in the twentieth century; and four of them served into the twenty-first century.

Over time, the average tenure for justices has increased, in part because of advancing life expectancy in the twentieth century. By the late twentieth century, most of the justices were continuing to serve even after reaching twenty years on the Court. The exceptions who retired before the twenty-year milestone included Chief Justice Warren Burger, who retired in 1986 after seventeen years on the Court, in order to serve as chair of the Commission on the Bicentennial of the Constitution. A second exception was David Souter (1990–2009), who retired to his home state of New Hampshire in good health without ever having been comfortable in Washington.

The trend toward longer service on the Court has increased attention to proposals dating at least from the 1980s for eighteen-year term limits on active service on the Court or a mandatory retirement age. The term limit proposals, which would require congressional action and would raise constitutional issues, typically provide that the term-limited justice would continue in effect as a senior Supreme Court justice, available to serve on lower federal courts or on the Court itself in the event of an interim vacancy or a recusal of one of the active justices.

Two law professors who favor term limits cited a growing problem of “mental decrepitude” among justices in an article published in the Harvard Journal of Law and Public Policy in 2006 that elaborated at length on their support for eighteen-year term limits. The article by professors Steven Calabresi and James Lindgren, both at Northwestern University Law School at the time, cited statistics showing that the average length of service for justices who left the Court from 1789 to 1970 was 14.9 years and the average length of service for justices who left the Court after 1970 was what they called an “astounding” 26.1 years. Justices were also leaving the Court at older ages, according to the professors’ compilations. The twelve justices who left the Court between 1971 and 2006 departed at an average age of 78.7 years; the eighteen justices who left the Court between 1941 and 1970 departed at significantly younger ages, an average of 67.6 years.

Based on these trends—including the trend for presidents to appoint justices at younger ages—it seems plausible that seven of the Roberts Court justices serving as of 2021 could reach the thirty-year milestone if their health holds out. As of October 2021, Breyer is within reach of the thirty-year milestone if he were to stay on the Court until reaching the age of eighty-eight in 2024. Roberts himself would begin his thirtieth term as chief justice in October 2035, at his age eighty. Three of the others could reach the thirty-year milestone if they were to continue serving into their eighties: Alito, Sotomayor, and Kagan. Three others—Gorsuch, Barrett, and Kavanaugh—could complete thirty years on the Court in the late 2040s at their ages 79, 78, and 82, respectively.

Nineteenth-Century Justices

The most important of the Supreme Court’s members to surpass the thirty-year mark was the most consequential of all of them: the great chief justice John Marshall, appointed in January 1801 by the lame-duck Federalist president John Adams. Marshall, appointed at age forty-five, went on to serve until his death on July 6, 1835. Marshall laid the foundation for the Court’s authority by leading the seminal decision in Marbury v. Madison that established the Court’s power to invalidate an act of Congress as contrary to the Constitution. Marshall also led a mostly unified Court in upholding Congress’s power to enact federal legislation that took precedence over states’ rights.

In all, eight ninteenth century justices held their offices for more than thirty years, including three who served under Marshall and who, like Marshall, died in office. They included Joseph Story (1812–1845), who is still cited today as perhaps the greatest legal scholar ever to serve on the Court. The others included Bushrod Washington (1798–1829), a nephew of the former president, and William Johnson (1804–1834), both of whom were staunch allies of Marshall throughout their tenures except for Johnson’s occasional dissents.

Marshall’s successor as chief justice was Roger Taney, who was appointed by President Andrew Jackson in 1836 and who steered the Court toward greater deference toward states’ rights. Taney, who served for twenty-eight years until he died in office on October 12, 1864, is best remembered as the author of the infamous Dred Scott decision in 1857, which opened the western territories to slavery by striking down the Missouri Compromise. The 7–2 ruling also categorically declared that Negroes “were so far inferior [to the white race] that they had no rights which the white man was bound to respect.”

Two Taney Court justices also served for more than thirty years, both of them appointed like Taney by Jackson: John McLean (1829–1861) and James Wayne (1835-1867). McLean, who was from Ohio, dissented in the Dred Scott case. Wayne, a Georgian joined the Dred Scott decision, but as a Unionist he stayed on the Supreme Court even after his home state seceded. Both died while still in office.

Two other nineteenth-century justices served on the Court until passing the thirty-year milestone: Stephen Field (1863–1897) and John Marshall Harlan (1877–1911). President Lincoln appointed Field, a Democrat from California, to a newly created Supreme Court seat during the Civil War for regional and political balance. Field was a major architect of late nineteenth century jurisprudence as the author of the property rights doctrine that generally limited the authority for federal or state governments to regulate businesses to protect consumers or workers. Field also showed his opposition to progressive causes by joining the majority decision in Pollock v. Farmer’s Loan and Trust Co. (1895) that struck down the federal income tax.

Field is one of the two thirty-year justices to have been forced into retirement by colleagues because of evidence of advancing senility. Field resisted the pressure to step down until he had surpassed John Marshall’s record-setting length of service. Field retired on December 1, 1897, after having served for thirty-four years and six months: forty-four days longer than Marshall’s tenure. Field’s record was surpassed eight decades later by William O. Douglas (1939–1975), who like Field was forced into retirement by colleagues because of age-related disabilities.

Like Field, Harlan, a former slaveholder from Kentucky who supported the Union, was appointed in part to serve regional and political balance. President Rutherford B. Hayes appointed Harlan in 1877, in Hayes’ first year in office after the disputed electoral college vote count in the 1876 election. Harlan dissented from several of the late nineteenth-century Court’s most important decisions, including, for example, the Court’s decision in Civil Rights Cases (1883) that denied Congress the power to prohibit racial discrimination by private individuals. Field was part of the 8–1 majority; Harlan was the lone dissenter.

Harlan is most famous for his later lone dissent in Plessy v. FergusonM (1896), the Court’s decision to uphold a Louisiana law requiring racial segregation on railways. Harlan famously opined in his dissenting opinion that the Constitution “is color-blind” and that it was wrong to “regulate the enjoyment of citizens’ civil rights solely on the basis of race.” The decision spawned the so-called “separate but equal” doctrine that survived until overruled by the Warren Court in Brown v. Board of Education (1954).

Harlan died in office in 1911, one month shy of thirty-four full years on the Court. Harlan’s namesake grandson later served on the Supreme Court from 1955 to 1971 as part of the unanimous support for court-ordered school desegregation but also as part of the Warren Court’s conservative bloc. Harlan dissented, for example, from the Warren Court’s decision in Baker v. Carr (1962), which opened the door to federal court adjudication of legislative reapportionment and redistricting cases. He retired from the Court in September 1971, ill with spinal cancer, and died three months later.

Twentieth-Century Justices

The eight twentieth-century justices who served for three decades or longer all played significant roles in the Court’s ideological shifts from the Warren Court’s liberal era to the more conservative eras under Burger, Rehnquist, and Roberts. The first of the great ideological shifts in the twentieth century began after President Franklin D. Roosevelt failed with his so-called Court packing proposal in 1937 to add new justices to offset the conservative majority that had blocked some of his most important New Deal policies.

Over a four-year period, Roosevelt transformed the Court by appointing New Dealers as the senior conservative justices retired. FDR’s first two appointees—Hugo L. Black, a pro-New Deal Democratic senator from Alabama, and William O. Douglas, then the head of the Securities and Exchange Commission and sometime presidential adviser—both went on to serve for more thirty years as stalwart members of the Court’s liberal bloc under Warren and briefly under Burger’s early years as chief justice.

To briefly highlight their most important opinions, Black wrote one of the Warren Court’s early decisions in the so-called criminal procedure revolution: the unanimous ruling in Gideon v. Wainwright (1963) that required states to provide counsel for indigent defendants being tried for serious crimes. Black wrote for six justices, while three others, including Douglas, wrote separate concurrences.

Two years later, Douglas led the 7–2 majority in Griswold v. Connecticut (1965) that struck down a Connecticut law that prohibited married couples from buying or using contraceptives. The right-to-privacy decision later became a foundational precedent of the landmark abortion rights decision in Roe v. Wade (1973).

Among the others, William J. Brennan Jr. (1956–1990), a pro-labor Catholic Democrat recess-appointed by President Dwight Eisenhower one month before the 1956 election, also proved to be a major figure in the Warren Court’s liberal era. Brennan’s major opinions—too numerous to list in this overview—included, for example, the seminal 6–2 decision in Baker v. Carr (1962) that opened the door to reapportionment cases in federal courts. He also led important decisions expanding rights for criminal defendants, victims of civil rights violations, and free-speech rights for individuals and news organizations. He wrote the landmark decision in New York Times v. Sullivan (1965) that established constitutional rules limiting the ability of public officials or public figures to win damages in libel suits.

The fourth of the twentieth century justices to complete three decades on the Court was Byron R. White, a New Frontiersman appointed by President John F. Kennedy in 1962 who served until 1993. White’s voting record was mixed: liberal in some areas, conservative in others. He dissented, for example, from the 5–4 decision in Miranda v. Arizona (1966) to require police to inform suspects in custody of their right to counsel during interrogation. He was one of the dissenters, along with Rehnquist, from the 7–2 decision in Roe v. Wade (1973). He also led the 5–4 ruling in Bowers v. Hardwick (1986) that set back LGBTQIA rights by upholding state anti-sodomy laws.

The fifth of the twentieth century justices to complete three decades on the Court was Rehnquist, appointed by President Richard M. Nixon in 1971 based on his conservative record in Arizona Republican politics and at the Department of Justice. Rehnquist drew strong opposition from Senate Democrats twice, first when confirmed by a 68–26 vote in 1971 and then when elevated to chief justice in 1986 on a 65–33 vote. As associate justice, Rehnquist was a strong-minded conservative and leading dissenter from the Burger Court’s occasional liberal rulings. As chief justice, Rehnquist led a conservative majority that limited without overruling important criminal law precedents and revised Establishment Clause precedents to give state and local governments more leeway to support religious institutions—for example, parochial schools.

Two of the other thirty-year justices were Republican appointees, John Paul Stevens and Anthony M. Kennedy, selected in 1975 and 1988 respectively as somewhat bipartisan choices because of particular political circumstances. President Gerald R. Ford chose Stevens to help restore confidence after the Watergate scandals that had ended Richard Nixon’s presidency. President Ronald Reagan nominated Kennedy after the Democratic-controlled Senate had rejected his first nominee for the vacancy created by Lewis Powell’s retirement, the archconservative legal scholar Robert Bork.

Stevens and Kennedy both had mixed voting records during their long tenures. Stevens evolved into a leader of the Rehnquist Court’s liberal bloc, frequently in dissent. Stevens wrote dissenting opinions for the liberal bloc in such major rulings as the 5–4 gun-rights decision in Heller v. District of Columbia (2008) and the campaign finance ruling in Citizens United v. Federal Election Commission (2010).

Kennedy helped give the liberal bloc narrow victories in several important decisions—including, for example, the 5–4 decision in Planned Parenthood v. Casey (1992) that reaffirmed Roe v. Wade, and decisions in two cases, Grutter v. Bollinger (2003) and Fisher v. University of Texas (2017), that allowed limited use of racial preference in college and university admissions. Kennedy also wrote two landmark decisions favoring LGBTQIA rights: Lawrence v. Texas (2003), a 6–3 ruling that struck down state anti-sodomy laws, and Obergefell v. Hodges (2015), a 5–4 decision that guaranteed marriage rights for same-sex couples nationwide.

Thomas, a Black conservative nominated by President George H. W. Bush in 1991 to succeed the famed civil rights pioneer Thurgood Marshall, won confirmation on a 52–48 vote. The historically narrow confirmation came after Thomas heatedly denied late-filed accusations of sexual harassment by a former aide at the Equal Employment Opportunity Commission, Oklahoma law professor Anita Hill. Thomas quickly joined the Rehnquist Court’s conservative bloc and continued in that role after Roberts succeeded Rehnquist in September 2005.

Thomas’s legacy remains to be written after his eventual departure by retirement or death, but he can be credited as the first of the conservative justices to formally call for the Court to consider recognizing an individual right to possession of firearms under the Second Amendment, in a footnote in a separate opinion in a 1997 decision. Thomas was part of the 5–4 majority that adopted that view a decade later in Heller v. District of Columbia (2008) by striking down D.C.’s ban on possession of handguns.

Thomas has had less success with other distinctive positions that he has advanced in separate opinions in various other contexts. For example, Thomas has argued for invalidating limits on contributions to political campaigns. He has argued as recently as the 2020 term against the Court’s landmark decision in Tinker v. Des Moines (1969) that barred school districts from punishing students for non-disruptive political speech. In another free speech context, Thomas has also called for reconsidering the decision in New York Times v. Sullivan (1964) that generally makes it difficult for public officials or public figures to recover damages in libel suits.

Rehnquist was the only one of the longest serving twentieth-century justices to die in office; he succumbed to throat cancer in December 2005. Black retired in ill health on September 15, 1971; suffered a stroke two days later; and died on September 25. Brennan retired in ill health on July 20, 1990, three months shy of a full thirty-four years on the Court. He died seven years later in 1997. Douglas was forced into retirement in 1975 after suffering a stroke in 1974 and after other justices formally agreed that they would not issue a decision that depended on Douglas’s vote for the majority. He died five years later in 1980.

White, Stevens, and Kennedy all retired in good health. White stepped down in 1993 not long after Democrat Bill Clinton had been inaugurated as president; White died nine years later in 2002. With Democrat Barack Obama in the White House, Stevens retired in 2010 at age nintey as the third longest serving justice in history; Stevens died in 2019 at age ninety-nine as the longest-lived justice in history. Kennedy retired in 2018 with the Republican Donald Trump in the White House. Kennedy had previously told Trump advisers that he wanted to retire with a Republican president in office. Kennedy also recommended to the White House two of his former law clerks, Neil Gorsuch and Brett Kavanaugh, as potential Supreme Court nominees and attended swearing-in ceremonies for both of them at the White House and the Court.

Term Limits Debates

The records of these sixteen longest-tenured Supreme Court justices provide ample evidence that justices can continue to serve competently in lifetime appointments for thirty years or longer. In short, their records do not provide “clear and convincing” evidence for the need to impose term limits or a mandatory retirement age. In general, the twentieth-century justices were all celebrated after retirement or death for long and distinguished service, with relatively few if any criticisms from partisan naysayers. As one exception to that later trend, William Johnson was severely criticized in his home state of South Carolina after his death for having supported nationalist views on the Court in opposition to the nullification doctrine favored by the state’s leading political figure, John C. Calhoun.

An eighteen-year term limit would result in a major change in Supreme Court service. In addition to the sixteen justices who surpassed the thirty-year milestone, another thirty-four justices served for more than eighteen years, including two who reached their thirtieth years in office but died before completing thirty full years on the Court: Oliver Wendell Holmes Jr. (1902–1932) and Antonin Scalia (1986–2016). Holmes, in ill health, was pressured by his colleagues to retire on January 12, 1932, eleven months short of the thirty-year milestone. Scalia died on February 13, 2016, eight months short of a full thirty years on the Court. The controversy over filling Scalia’s seat as Senate Republicans refused hearings for President Obama’s nominee Merrick Garland helped bring out heavy, sustained criticism of Scalia’s views and his record on the Court.

Proponents argue in part that eighteen-year term limits would reduce the partisanship surrounding Supreme Court nominations by reducing the political stakes of each individual nomination because of regular turnover at two-year intervals and the chance for each new president to nominate two justices. On the other hand, increased turnover on the Court over time would increase the number of vacancies to be filled. As one example, the Court would have had two more vacancies during the 1950s if Black and Douglas had been forced to step down because of term limits. With the Court in political cross-hairs at the time because of school desegregation and other issues, the nominations to fill those vacancies quite likely would have touched off bruising partisan fights.

As a secondary argument, supporters of term limits contend that it is impossible for the president or Senate to reliably judge how a nominee will view legal issues that emerge over a long tenure. As one example, it has been noted that the Senate confirmed John Paul Stevens in 1975 without asking any questions about the Roe v. Wade decision, issued two years previously. Roe v. Wade has been a major subject for every Supreme Court confirmation since then, beginning, for example, with Sandra Day O’Connor’s confirmation in 1981 as the Supreme Court’s first female justice and continuing through confirmation hearings for, among others: Bork, Souter, Thomas, and Roberts, and all three of Trump’s appointees. Bork’s refusal, in the context of Roe v. Wade to recognize a constitutional right to privacy, was an important factor in the Senate’s eventual 58–42 vote to reject the nomination.

All three of Trump’s nominees were closely questioned about Roe v. Wade during contentious, partisan confirmation proceedings in the Republican-majority Senate, especially in the light of Trump’s pledge to appoint justices who would vote to overrule Roe v. Wade. All three—Gorsuch, Kavanaugh, and Barrett—gave nuanced answers promising in noncommittal terms to respect the decision as precedent. Those answers played a part in their eventual confirmations by historically narrow margins, mostly along party lines: 54–45 for Gorsuch; 50–48 for Kavanaugh; and 52–48 for Barrett.

Term limits proposals have not advanced out of congressional committees despite having been introduced in various forms over the years and despite widespread popular support according to public opinion polls. In the most recent poll, conducted in May 2020 for the pro-term limits organization Fix the Court, the private polling firm PSB found that 77 percent of respondents surveyed supported limits on Supreme Court service, while 23 percent were opposed. In the survey, 70 percent of self-identifying Republicans and 72 percent of self-identifying Democrats agreed with this statement: “No one with a position as powerful as Supreme Court justice should serve for life.” The New York Times columnist Maureen Dowd adopted the same view in a column published in the newspaper on October 9, 2021: “Justices should not serve on the court for 30 years,” Dowd wrote, “or into their 80s.”

By October 2021, six major newspapers had formally endorsed term limits proposals: The Boston Globe, The Los Angeles Times, The New York Times, The Pittsburgh Post-Gazette, South Florida’s Sun-Sentinel, and The Washington Post. In the most recent of those editorials, the Post also urged President Biden’s commission on Supreme Court reform to include term limits in its eventual recommendation. Term limits, the Post’s editorial board wrote, “would drain some of the intensity from Supreme Court politics by providing both parties with foreseeable, regular opportunities to nominate justices—thus lowering the stakes of each vacancy. It would allow presidents to nominate the most qualified justices, rather than looking for the youngest plausible nominees.” Term limits, the Post added, “should be high on Mr. Biden’s commission’s agenda.”

The commission released discussion materials on October 14 that confirmed term limits as one of the topics the group was considering, along with proposals to expand the number of justices on the Court. The draft materials related the history of those proposals along with arguments on both sides.

 

Document Citation
Kenneth Jost, Justices’ Longer Tenures Spur Term Limits Debate, CQ Supreme Court Collection (2021), http://library.cqpress.com/scc/cqelsc-1619-117609-2991526.
Document ID: cqelsc-1619-117609-2991526
Document URL: http://library.cqpress.com/scc/cqelsc-1619-117609-2991526