THE SOURCE: “Life Tenure on the Supreme Court: Time for a Change?” by Kevin T. McGuire, in Judicature, July–Aug. 2005.

The recent appointments of 50-year-old John G. Roberts and 55-year-old Samuel Alito reduced the previous 8–1 majority of senior citizens on the Supreme Court, but in the age of ever-lengthening life spans, the worry that justices stay on the bench far too long isn’t likely to go away. The Founding Fathers, acting when life expectancy was less than 40 years, could hardly have foreseen the danger that lifetime tenure might mean a superannuated Court rarely refreshed by new appointments.

Yet a hard look at the historical record shows that the danger is exaggerated, contends Kevin T. McGuire, a political scientist at the University of North Carolina, Chapel Hill.

Before 80-year-old Chief Justice William Rehnquist’s death last year, the median age of the justices was 69. That was only five years more than the Court’s average median age since the dawn of the 20th century.

What about length of service? Rehnquist served 33 years, one of the Court’s 10 longest tenures in history, and retired Justice Sandra Day O’Connor, 75, served only a decade less than he did. The median length of service for sitting justices before the recent departures was 18 years. Before the Civil War, the median length of service reached a high of 24 years. Since 1869, when Congress began offering financial support to justices who retired, the median length of service has seldom exceeded 15 years, so rookies Roberts and Alito return the Court close to the historical norm.

From the mid-19th to the mid-20th centuries, justices generally were appointed in their mid-50s, leaving the Court when they were about 70 years old, often only at death. Of the justices appointed since the 1950s, all those who left the Court before Rehnquist went willingly into retirement—but at the more advanced median age of 77. Even so, that is not much different from the age-75 maximum that reformers have proposed be adopted by constitutional amendment.

All in all, McGuire concludes, the historical evidence indicates there’s no need to tinker with lifetime tenure for Supreme Court justices. But if Congress decides it wants to speed up turnover on the Court, a much simpler remedy is at hand: Just offer justices who step down before they reach age 75 or complete 15 years of service the opportunity to retire at twice their current salary. Let the record show that the pension bait of 1869 revealed that even the lofty Supremes aren’t immune to financial incentives.