Topline

Some progressive groups are calling for Stephen Breyer, the oldest living justice on the Supreme Court, to retire so President Joe Biden can nominate another liberal justice to the bench who is younger, but recent history shows justices are leaving the Court later than ever.

Key Facts

 At 82, Breyer—one of only three liberal justices on the Court—is the oldest justice on the bench.

The next oldest justice is Clarence Thomas, a justice on the conservative wing of the Court, who is 72 years old. 

Justices are also serving much longer tenures than they used to: justices appointed between 1975-1999 served around 26.2 years on average, compared to just 18.3 years in the 25 years prior. 

Since the Civil War, the average tenure of a Supreme Court justice has grown by more than a decade.

These spikes are due to several factors, including an increase in life expectancy, as justices are now living more than five years longer than they did during the 1950s, and the fact justices are being appointed at a younger age

What To Watch For 

Democrats’ bleak outlook for changing the makeup of the Court has led some progressives to call for Biden and Congress to attempt reform. On Wednesday, a group of progressive lawmakers in Congress proposed a bill that would increase the size of the Supreme Court from 9 justices to 13 (there’s nothing in the Constitution that says how large or small the Court must be.) A day later, House Speaker Nancy Pelosi (D-Calif.) made clear she does not support the bill and won’t bring it to the floor, taking air out of the long shot effort. Other progressive groups, including the Center for American Progress, have called for term limits on Supreme Court justices. Last week, Biden signed an executive order to establish a commission to study Supreme Court reform, including its “membership and size.” He has also promised to nominate the first Black woman to the Court if given the chance. 

Key Background  

The pressure on Breyer to step down comes after Democrats watched former President Donald Trump cement a 6-3 conservative majority on the court for likely years to come. Trump nominated three justices to the Court in just one term, the most of any president since Richard Nixon, and the average age of his current appointees is about 53 (Neil Gorsuch is 53, Brett Kavanaugh is 56 and Amy Coney Barrett is 49.) The last justice to retire on the court was Anthony Kennedy, a Reagan appointee, in 2018. Of the last 10 justices to leave the court, seven retired while three died. Former President Barack Obama nominated three justices to the Supreme Court, but only two were confirmed after the then-Republican controlled Senate blocked the nomination of Merrick Garland, who is now Biden’s attorney general. 

Tangent

Justice Ruth Bader Ginsburg was 87 years old when she passed away from pancreatic cancer last year. Ginsburg was replaced on the Court by Justice Barrett. 

Chief Critic 

“The only responsible choice for Justice Breyer is to immediately announce his retirement so President Biden can quickly nominate the first-ever Black woman Supreme Court justice,” Brian Fallon, executive director of the liberal advocacy group Demand Justice, said in a statement earlier this month. “We cannot afford to risk Democrats losing control of the Senate before a Biden nominee can be confirmed. Justice Breyer is not entitled to the benefit of the doubt at this point.”

Crucial Quote

“I mean, eventually I’ll retire – sure I will,” Breyer said in an interview in December with Slate. “And it’s hard to know exactly when.” 

Big Number

90. That was the age of Oliver Wendell Holmes Jr. when he retired from the court in 1932, the oldest justice to ever serve

Surprising Fact

Jimmy Carter is one of four former presidents who did not appoint a Supreme Court justice while in office. 

Further Reading

Progressives In Congress To Introduce Bill Expanding Supreme Court From 9 To 13 Seats (Forbes)

Progressives Demand ‘Breyer Retire’ So Biden Can Appoint Supreme Court Justice (Forbes)

How Modern Medicine Has Changed the Supreme Court (New York Times)