Chattanooga Times Free Press

Modern medicine has changed the Supreme Court

- BY DHRUV KHULLAR AND ANUPAM B. JENA NEW YORK TIMES NEWS SERVICE

Two related health trends mean that each Supreme Court nomination now has the potential to shape the nation’s highest court for far longer than in the past.

One is that Americans live decades longer than they did when the country was founded. At the same time, medical and public health advances have changed the dominant causes of death from infectious to chronic diseases. Infectious diseases typically kill fast, while chronic ones have a longer course. This shift toward a longer and slower decline, as opposed to more rapid death, means justices are more able to select the administra­tions and political environmen­ts in which to end their terms — to, in effect, pass the baton.

Justice Anthony M. Kennedy, for example, was reportedly assured that his judicial legacy would be preserved should he step down. Senate confirmati­on hearings for the man nominated to succeed him, Judge Brett Kavanaugh, begin next week.

Life tenure meant something different when the founders were drafting the Constituti­on and guaranteei­ng federal judges lifetime appointmen­t “during good behavior” to insulate them from politics. Life expectancy was around 40; political polarizati­on was narrower; and the Supreme Court’s role was still uncertain.

The data confirms that the average life span of justices has steadily increased over the past two centuries. Justices confirmed before 1800 lived, on average, to age 67; those confirmed between 1950 and 1974 lived to almost 82. Only one justice (Antonin Scalia) confirmed between 1975 and the turn of the century has died, and the average age of this cohort to date is over 82 years.

At the same time, the age at which people are becoming justices has been decreasing. Since 1900, the average age at confirmati­on has declined to 52.2 years from 55.4. Justice Neil Gorsuch, confirmed at 49 last year, may well serve into the middle of this century. President Donald Trump’s current nominee, Kavanaugh, is 53.

The result? The length of tenure for a Supreme Court justice has grown by about a decade since the Civil War. Justices confirmed just after the war served about 16 years, while those confirmed at the end of the 20th century have served, on average, 26 — a number that will continue to grow as incumbent justices serve out their terms.

That wasn’t the reality in the early decades of the Supreme Court. More than 80 percent of those confirmed in the early 1800s died during their tenures. By contrast, only 11 percent of those confirmed in the second half of the 20th century died in office; the rest retired. Modern justices are more likely to survive serious illnesses. Justice Ruth Bader Ginsburg, 85, for example, has survived both colon and pancreatic cancer (and recently said that “I have about at least five more years” on the court). Justice Sonia Sotomayor, 64, has had Type-1 diabetes since childhood.

Supreme Court nomination­s have become increasing­ly rare. One recent analysis estimated that only 25 justices will be appointed in the coming 100 years, compared with 47 appointed in the last 100 years. That means the consequenc­es of each nomination are growing larger and the political battles more heated. A justice experienci­ng mental decline may be more likely to stay on and retire during a presidenti­al term in which a successor could carry on his or her legacy.

As judges routinely serve into their 70s and 80s and beyond, some courts — but not the Supreme Court — are taking significan­t steps to make sure judges are mentally sharp. The 9th Circuit Court of Appeals, for example, holds regular seminars to teach judges about signs of mental decline. It also encourages judges to have cognitive tests and designate colleagues or loved ones who can intervene if necessary.

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