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.