In mid February, Supreme Court Justice Antonin Scalia passed away. With news of his passing and the upcoming presidential election, there has been significant focus on the nomination and appointment of a Justice to replace him. This focus has been primarily on the number of appointments a single president should make as well as the appointment of a new Justice during a presidential election year. We decided to look at the history of the Supreme Court Justices to see what the average number of appointments by president is and whether appointing a Justice during an election year is normal.
What Is Normal When Appointing a Supreme Court Justice?
Over the history of the Supreme Court, there have been 112 Justices and 114 appointments (two Justices were reappointed). The average number of appointments by a president is 2.6. We also looked at the number of appointments on average by the number of terms a president has. Unsurprisingly, presidents with less than two full terms have a lower average with 2.25 appointments. Presidents with two full terms (excluding FDR and Washington) have an average of 3.1 appointments. Washington appointed the most Justices at 11, and he was followed by FDR with 8 appointments. Only four presidents did not make any appointments: William Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter. Carter was the only president not to make an appointment during the 20th century. After Reagan, who appointed three, each president has appointed two Justices.
Interestingly, only 17 of the 43 presidents had unsuccessful Supreme Court nominations. One of these included Andrew Johnson, whose one and only nomination was unsuccessful. Only two other presidents have nominated more Justices than they appointed: Millard Fillmore with three nominations and one appointment and John Tyler with four nominations and one appointment. The most recent unsuccessful nomination was George W. Bush’s nomination of Harriet Miers to replace Justice Sandra Day O’Connor. Miers was previously Bush’s private attorney and White House Counsel. Samuel Alito, currently serving, was instead nominated to replace Justice O'Connor and was appointed in 2006.
|President||Unsuccessful Nominations||Successful Appointments|
Appointments made during an election year are not uncommon. In fact, almost 20% of appointments have been made during an election, and five of those appointed Justices eventually became Chief Justices. The most recent justice to be appointed during an election year was Justice Anthony Kennedy, who is still serving on the Supreme Court and was appointed by Reagan. Before Kennedy, Justices William Rehnquist and Lewis Powell were both appointed during the 1972 election year by Nixon. Justice Rehnquist eventually became Chief Justice of the Supreme Court under Reagan in 1986, and his Associate Justice position was filled by the recently passed Antonin Scalia.
Of the 22 Justices appointed during an election year, half were also nominated within that same year. Two other justices were nominated in an election year, but officially appointed in the following year. There have been 26 total nominations during an election year, with 50% eventually being confirmed and appointed as Justices. Of these 13 unsuccessful nominations, 11 occurred before 1853. Two unsuccessful nominations happened in 1968 under President Lyndon Johnson. One was the nomination of sitting Associate Justice Abe Fortas to Chief Justice and the nomination of Homer Thornberry to fill Fortas' Associate Justice position. Fortas' nomination for Chief Justice was filibustered in Congress and subsequently withdrawn, which caused Thornberry's nomination to be withdrawn as the Associate Justice position was no longer available.
Tenure and Background of Supreme Court Justices
The average tenure of a Supreme Court Justice has been 16.5 years. Since many of the first justices did not serve for very long, we also looked at the average tenure for Justices appointed in 1950 or later. The average tenure for these Justices is 19.4 years. Given that four of the current Supreme Court Justices have served for more than 20 years, it is likely that this average will continue to rise. The longest tenure of a Supreme Court Justice was William Douglas, who served for 36 years from 1939 to 1975. The shortest was John Rutledge, who served less than a year in 1795 during a recess appointment. The table below shows the five longest and shortest serving Justices, along with the reason he left the Supreme Court. The most common reasons for leaving the Supreme Court are death and retirement.
|Judge||Tenure||Years in Office||Appointed By||Reason for Leaving Supreme Court|
|William O. Douglas||1939–1975||36||Roosevelt, F.||Retirement|
|John Paul Stevens||1975–2010||35||Ford||Retirement|
|John Marshall||1801–1835||34||Adams, J.||Death|
|Stephen Johnson Field||1863–1897||34||Lincoln||Retirement|
|John Marshall Harlan||1877–1911||34||Hayes||Death|
|Robert Trimble||1826–1828||2||Adams, J. Q.||Death|
|Howell Edmunds Jackson||1893–1895||2||Harrison, B.||Death|
|James F. Byrnes||1941–1942||1||Roosevelt, F.||Resignation|
Comparing Supreme Court Justices to Other “For-Life” Positions
Given that the average Supreme Court Justice has served 16.5 years, how does this compare to other long-serving positions such as the Pope or the British monarch? We compared the average tenure of Justices with Popes since 1775 and British monarchs since 1760. On average, Supreme Court Justices have served 2.5 years longer than Popes. However, the tenure of Supreme Court Justices pales in comparison to the average reign of recent British monarchs, who, on average, reigned almost twice as long as Justices.
|Title||Avg. Years Served||Age at Appointment|
|Pope (since 1775)||14||54||78||65|
|Supreme Court Justice (since 1789)||16.5||33||68||54.5|
|British Monarch (since 1760)||28||18||65||44|
The longer average reigns of British monarchs are due mostly to the age at which a monarch can be coronated. Queen Victoria, for instance, was coronated when she was only 18 years old and served for 64 years as the Queen of England. The influence of age becomes obvious when comparing Queen Victoria to the longest serving Justice, William Douglas, who served for 36 years and was appointed at the age of 41, or to the longest serving Pope, Pope Pius IX, who served 32 years and was appointed at the age of 54.