An Empirical Analysis of Life Tenure: A Response to Professors Calabresi and Lindgren

INTRODUCTION I. PINNING DOWN THE EMPIRICAL CLAIM II. LIFE TENURE BY THE NUMBERS A. The Period-Selection Problem B. The Date-of-Observation Problem C. Regression Models for Length of Tenure 1. Calabresi and Lindgren's Reported Cubic Model 2. Calabresi and Lindgren's Unreported S-Curve Model 3. The Null Hypothesis 4. The Date-of-Observation Problem Revisited CONCLUSION INTRODUCTION Opposition to life tenure has been steadily mounting in the legal academy, and Professors Steven Calabresi and James Lindgren are among those leading the charge. In an article published in the Harvard Journal of Law & Public Policy, (1) Calabresi and Lindgren denounce life tenure as "fundamentally flawed" (2) and "essentially a relic of pre-democratic times." (3) They deserve credit for assembling the most comprehensive critique of life tenure to date, carefully documenting what they see as its major drawbacks, and proposing a constitutional amendment providing for fixed, non-renewable eighteen-year terms for Supreme Court Justices. (4) Their article has attracted well-deserved attention among legal scholars and in the popular press. To its credit, it has found champions of all political persuasions. (5) Calabresi and Lindgren direct three criticisms at life tenure. First, because it produces infrequent vacancies, life tenure affords the President and Senate too few opportunities to act as a democratic check on the Court through the appointment of new members. (6) Second, again because of infrequent vacancies, life tenure raises the stakes of each appointment to undesirable levels, thereby exacerbating the politicization of the appointment process. (7) Third, life tenure allows Justices to serve well into old age, increasing the risk of "mental decrepitude" on the Court. (8) Crucial to these policy criticisms is an underlying empirical claim that "the real-world, practical meaning of life tenure" has changed dramatically since 1970. (9) Calabresi and Lindgren point to several trends as evidence of this transformation. The most frequently mentioned is the average length of tenure on the Court: Justices who left office between 1789 and 1970 served an average of 14.9 years on the bench, whereas Justices who left office between 1970 and 2006 averaged 26.1 years--an increase that Calabresi and Lindgren describe as "astonishing." (10) According to the authors, the trend marks a fundamental change in the operation of life tenure. In the winter of 2005, we published an article taking a contrary view, defending life tenure as an institution worth preserving but proposing a package of retirement incentives--a "golden parachute" for Supreme Court Justices-to encourage mentally infirm Justices to retire in a timely manner. (11) We agreed with Calabresi and Lindgren on a number of issues, echoing their concerns about mental and physical infirmity on the Supreme Courty, (12) and agreeing that statutory efforts to abolish life tenure are unconstitutional. (13) But we also dedicated less than two pages of our seventy-page article to a rebuttal of one aspect of Calabresi and Lindgren's empirical claim, arguing that the "astonishing" increase in average tenure "depends more on the chosen period lengths than a bona fide trend." (14) Our article included two simple charts demonstrating that, by choosing a shorter period length or using non-overlapping groups of Justices rather than periods of time, the data do not reveal a dramatic recent increase. (15) The revised version of Calabresi and Lindgren's article contains fully eleven pages of new material responding to our criticisms. (16) This Article refines and elaborates upon our critique of Calabresi and Lindgren's empirical claim, arguing that changes in average tenure are not "astonishing" and "unprecedented." Instead, we defend the conventional view that, despite short-term fluctuations, length of tenure has increased slowly and steadily over the long term, and that we can expect more slow and steady growth in the future. …