ARE THE JUSTICES SERVING TOO LONG?

DENNIS BRACK AN ASSESSMENT OF TENURE ON THE U.S. SUPREME COURT by KEVIN T. MCGUIRE he image of Chief Justice William Rehnquist, encum- problems as judicial incapacitation and entrenched power, bered by illness, tentatively making his way down the strategic retirements from the Court, and presidential Twest steps of the Capitol to administer the oath of incentives to select young nominees unseasoned for serv- office to the newly re-elected President George W. Bush ice, critics charge that lifetime appointments to the Court offered a vivid illustra- should be replaced tion of the humanity Seen in historical perspective, with a system that of the Supreme secures more regular Court. Virtually all of the tenure of the justices of the Supreme Court turnover and reduces the justices are now is not dramatically at odds the age of the justices. well into the autumn But is reform actu- of their careers; the with the patterns of Courts past. ally warranted? Are entire Court, save Jus- the justices, in fact, tice , is age 65 or older. Despite their too elderly, too stubbornly fixed, or serving too long? This age, the current justices have shown little sign of article examines some of the historical trends in the length turnover. Justice Sandra Day O’Connor’s recently of service on the Court and concludes that, contrary to announced departure is the first in over a decade. current assertions, the tenure of the justices has been quite Indeed, no group of justices has served together this long stable over time. While the age of the justices is presently since was sitting on the Court. higher than the historical mean, it is not substantially so. In light of these facts, numerous observers of the Court have concluded that it is time to reconsider life tenure 1. See, e.g., Amar and Calabresi, Term Limits for the High Court, Washington for the justices. Reviving proposals that have been in cir- Post, August 9, 2002, at.A23; Carrington and Cramton, The Supreme Court culation since the 1990s, observers have begun to make Renewal Act: A Return to Basic Principles March 5, 2005 (paulcarrington.com/ Supreme Court Renewal Act.htm); DiTullio and Schochet, Saving this Honor- various suggestions to transform the Court’s member- able Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered ship—imposing term limits or elevating justices to senior Nonrenewable Eighteen-Year Terms, 90 VA. L. REV. 1093 (2004); Lazarus, Life 1 Tenure for Federal Judges: Should It Be Abolished?, Findlaw’s Writ, December 9, status after a certain number of years, for example —but 2004 (writ.news.findlaw.com/lazarus/20041209.html). Some of the earlier these proposals presuppose that the current Court con- proposals can be found in Easterbrook, Geritol Justice: Is the Supreme Court Senile?, NEW REPUBLIC Aug. 19, 1991, at 17; Oliver, Systematic Justice: A Proposed stitutes a deviation from the historical norm so substan- Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the tial as to require legislative reform. Centering on such Supreme Court, 47 OHIO ST. L. J. 799 (1986).

8 JUDICATURE Volume 89, Number 1 July-August 2005 Moreover, by some measures, the jus- and Anthony objective judgment about his or her tices are spending no more time on Kennedy, have been sitting on the capacities.4 One reformer, Cornell the Court than their brethren who Court for nearly 20 years. law professor Roger Cramton, sums have served over the past 150 years. Perhaps not surprisingly, several up what seems to be a widely shared In fact, when viewing their tenure in members of the Court have suffered sentiment: “These guys are simply light of changing life expectancies, serious health complications. Most hanging on too long.”5 the modern justices are actually con- recently, Chief Justice Rehnquist was What constitutes “too long,” of trolling judicial policy for less time diagnosed with cancer of the thy- course, is a relative question. To assess than the justices in any previous roid. In the 1990s, Justice Ginsburg whether the current Court is truly period. Given these historical trends, underwent surgery for colon cancer, anomalous—and thus sufficiently natural attrition will almost surely and Justice Stevens was treated for problematic to warrant changing how correct any perceived problems with prostate cancer. In the late 1980s, the Court is composed—I examine the present set of justices. Justice O’Connor suffered from data on both the age and length of breast cancer.3 service of the justices over time. Overview of the current Court In light of these considerations, it Judging by the Court’s current com- is not difficult to fathom why critics Too old? position, it is not difficult to discern of life tenure would voice concerns: Knowing the age of the justices is a the cause for concern. Two of the jus- Unchanged for 10 years, the Court is good starting point, but absent other tices, William Rehnquist and John a group consisting almost entirely of information it is not very useful. For Paul Stevens, are octogenarians, hav- senior citizens, several of whom have example, the current average age of a ing served longer than all but a battled serious health problems. U.S. senator is 60.6 Is that older than handful of the jurists ever to sit on Compounding these concerns is the the members of the Senate should the Court. Chief Justice Rehnquist’s fact that the responsibility for deter- be? Assessing whether the demo- 33 years—a record of service equal mining when a member of the Court graphic characteristics of any national to that of William Brennan, Joseph may no longer be fully fit for the job institution are at the appropriate level Story, and the elder John Harlan—is is left to the discretion of the indi- requires either some ideal standard among the 10 longest in history, and vidual justice, who obviously may not against which to compare those char- Justice Stevens’ time on the Court— be in the best position to render an acteristics or some longitudinal evalu- only four years less—places him among the top 15 longest serving. Following close on their heels at age 75 is Justice Sandra Day O’Connor. TABLE 1. AGE AND LENGTH OF SERVICE Even with a decade less service on AMONG CURRENT JUSTICES the Court than the chief justice, she will retire one of the longest serving Justice Age Service 2 justices in history. William H. Rehnquist 80 33 years As Table 1 illustrates, the balance 85 29 years of the Court is scarcely any less Sandra Day O’Connor 75 23 years mature. Quite notably, there is rela- Antonin Scalia 69 18 years 69 17 years tively little variation in the ages of David H. Souter 65 14 years the remaining six justices; leaving Clarence Thomas 57 13 years aside Justice Thomas, only seven 72 12 years years separates the eldest, Justice Stephen G. Breyer 66 11 years Ruth Bader Ginsburg, from the youngest, Justice . Fur- thermore, two of these justices,

2. Epstein et al., The Supreme Court Com- pendium 336 (Washington, DC: Congressional Quarterly, 1996). 3. Greenhouse and Seelye, Rehnquist Treated For Thyroid Cancer, Supreme Court Says, N.Y. Times, October 26, 2004, at A1; Greenhouse, Ruth Gins- burg Has Surgery For Cancer, N.Y. Times, September 18, 1999, at A10. 4. See, for example, Okie, Illness and Secrecy on the Supreme Court, 351 NEW ENGLAND J. MED. 2675- 2678 (2004). 5. Quoted in Mauro, Academic Group Proposes Term Limit of 18 Years on U.S. Supreme Court, N.Y. LAW JOURNAL, January, 3, 2005, at 1. 6. Amer, Membership of the 109th Congress: A Profile, William Rehnquist John Paul Stevens Sandra Day O'Connor CRS Report for Congress, December 20, 2004, at 1. (Appointed 1972) (Appointed 1975) (Appointed 1981)

www.ajs.org JUDICATURE 9 FIGURE 1: MEDIAN AGE AMONG SITTING JUSTICES, 1790–2005 Age

Year

ation of how those characteristics ebb over time there has been no marked however, the justices have generally and flow over time. Absent any preex- change in the level of the justices’ age.9 been appointed in their mid-50s. isting standard—unlike the president The median age across the entire time With regard to the end of their and members of Congress, the mem- period is 63 years, and from the twen- careers, the historical norm seems to bers of the Court have no constitu- tieth century forward, the median be to leave the Court—either will- tionally specified age minimum—it is remains virtually unchanged at 64 ingly or unwillingly—at age 70 or likely to be more illuminating to com- years. Even the current Court, whose older. For those appointed in the pare the age of the justices over time. median age is 69, is not dramatically first half of the nineteenth century, To gauge changes in the age of the different from the historical norm. the median justice exited at 75, and justices, I have calculated the median Another way to consider possible the members of the Court appointed age on the Court from 1789 to 2005.7 changes in age is to aggregate the over the next 100 years left the Court This time series, presented in Figure individual justices by the historical when they were roughly 70 years old. 1, is easy enough to interpret; when eras in which they were appointed to Of the justices appointed since the the membership remains constant, determine whether the ages at 1950s, those who have subsequently the median age increases by one with which they are elevated to and left the Court did so at the somewhat each successive year, while declines depart from the high court demon- represent the appointment of new strate substantial variation. Exclud- 8 7. These data are taken from Epstein et al., (and presumably younger) justices. ing the justices currently on the supra n. 2, Table 4-11. If more than one justice The Court’s early years are marked Court, Figure 2 presents the median occupied the same seat on the Court during a cal- endar year, I use the age of the justice who served by a somewhat younger set of justices, arrival and departure ages of the jus- longer during that year. but by 1830 the median age exceeded tices appointed across five different 8. Obviously, the appointment of a new justice 10 who was older than the median-age justice (i.e., 60, a level it has rarely fallen below intervals. Like the data in Figure 1, replacing a relatively older justice with another since. Of course, given increases in life these histograms suggest more simi- relatively older justice) would create the appear- ance of the Court’s membership remaining, at expectancy (which is addressed larity than difference over time. least with respect to age, unchanged. below), one would naturally expect Prior to 1850, the justices came to 9. This can be verified statistically, and indeed it is a “stationary time series,” which simply means these data to trend upward over time the Court at a slightly younger age, that the average is constant over time. to some degree. A closer look at these which again given increasing life 10. The data in this figure exclude the current justices. So, the time period ends in 1971 since no data, however, suggests that while the expectancies is what one would justice appointed after that year has since left the variation in age has certainly increased anticipate. From 1851 to the present, Court.

10 JUDICATURE Volume 89, Number 1 July-August 2005 FIGURE 2: JUSTICES’ MEDIAN AGE AT APPOINTMENT AND DEPARTURE

Year of appointment

more advanced median age of 77. office at more or less the same age at Court. This time series answers the This increase, at least on its face, which more recent justices have vol- following question: in any given year, might seem to validate the concerns untarily retired. Thus, the case for a how long have the justices been sit- expressed by some about the poten- mandatory retirement age would ting on the Court? tial for physical and mental decline have been substantially stronger in Not surprisingly, prior to 1810, the on the modern Court and the need the nineteenth century. Such a pro- Court was relatively inexperienced. to impose a mandatory retirement posal carries less weight in more In the early days of the republic, age.11 Yet this age is scarcely different recent years when the justices, on recruiting and retaining individuals from the one proposed by reformers average, seem perfectly willing to to serve on what was then a position (75 years), who advocate fixing this cede their seats without the prod- that carried little distinction and sub- maximum by constitutional amend- ding of constitutional policy. stantial personal sacrifice was quite ment. Perhaps more telling, all of problematic. Judges on state courts the justices appointed since 1950 Length of service were held in far higher professional who have left the Court have done so Whether the justices are “hanging regard, which made the federal judi- willingly.12 These members of the on too long” can also be assessed by ciary less enticing, and the rigors of Court stand in stark contrast to their examining the number of years that circuit riding proved far too taxing antebellum brethren; of the justices they devote to serving on the Court. for many of those who were willing appointed between 1801 and 1850, Length of service is conditioned by to sit on the Court. As a conse- the vast majority—84 percent, in age, but the two are not interchange- quence, turnover on the Court was fact—were either unwilling or able. Some justices may choose to high.13 unable to step down; they died in leave the Court with potentially pro- Once this volatility began to stabi- ductive years still ahead of them; oth- lize in the early 1800s, however, the ers may elect to remain, even past median justice served increasingly 11. See, for example, Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a the point where they can contribute longer, reaching historical peaks of 24 28th Amendment, 67 U. CHI. L. REV. 995-1087 meaningfully to the Court’s policy years in 1834 and 21 years in 1861. (2000). 12. Epstein et al., supra n. 2, Table 5-7. making. To evaluate how their (The dramatic drop between these 13. Ward, DECIDING TO LEAVE:THE POLITICS OF length of service has changed over two years is principally due to Con- RETIREMENT FROM THE UNITED STATES SUPREME time, Figure 3 charts the median gress increasing the size of the Court; COURT (Albany, NY: State University of New York Press, 2003). number of years served on the any new seat has the effect of lowering

www.ajs.org JUDICATURE 11 FIGURE 3: MEDIAN YEARS OF SUPREME COURT SERVICE AMONG SITTING JUSTICES, 1790–2005 Number of years

Year

the median.)14 The justices during the ure of financial support to retiring jus- recent years have seen increases in first half of the nineteenth century tices, the median amount of service the amount of time spent on the served for such extended periods on the Court has only rarely—say, for Court. In 1990, the median service largely because Congress had not yet example, at the time of FDR’s Court- was 20 years, and in 2005 it has provided for their retirement. With- packing plan—exceeded 15 years. In reached 18 years. But, the announced out the security of benefits to see them short, leaving aside the historic lows retirement of Justice O’Connor, com- through their later years, justices had and highs, since the Civil War, the ten- bined with the departure of either the little choice but to remain on the dency has been for the justices to ailing Chief Justice Rehnquist or the Court until death.15 Since 1869, when remain only one and a half decades. Court’s oldest member, Justice Congress began offering some meas- It is true, of course, that more Stevens, would return the Court to its historical norm. Unless reformers The tenure of some previous justices wish to argue that this norm is itself “too long,” then regular attrition, not legislative or constitutional interven- tion, will provide a solution.

Increasing over time? Still, one of the lingering anxieties is that the experience of more recent years is a harbinger of much length- ier tenures. As some critics explain, “The Founders, acting at a time

William J. Brennan, Jr 14. Between 1836 and 1838, the Court expanded from seven to nine justices. (1956-1990) (1877-1911) (1811-1845) 15. Ward, supra n. 13, at 15-21.

12 JUDICATURE Volume 89, Number 1 July-August 2005 FIGURE 4: MEDIAN TIME ON THE COURT AS A PERCENTAGE OF JUSTICE LIFESPAN AND AMERICAN LIFESPAN Percent

Year of appointment Justice lifespan American lifespan Fix 1900 in table

when life expectancy at birth was less the justices into historical cohorts, tices died on the Court in over- than 40 years, could not foresee that designated by the year in which they whelming numbers. lifetime tenure would result in per- were appointed to the Court. For After Congress’s post-Civil War sons holding so powerful an office each justice, I divided that justice’s provision of retirement benefits, the for a generation or more.”16 If life total number of years on the Court justices seem to have adopted a expectancy continues to increase, so by the justice’s age at death and then norm of retirement, and subsequent too will the justices’ tenure. calculated the median percentage improvements in those benefits have Regardless of whether the for the justices in each cohort. This only increased the number of jus- Founders expected that the justices has the effect of controlling for their tices who step down.17 Since then, would serve across multiple genera- life expectancy, since justices who the justices have tended to spend tions, they did anticipate that the live longer can naturally be expected about 20 percent of their lives sitting members of the Court would serve to serve longer. on the Supreme Court. Indeed, the life tenure. Assuming the Framers These results, represented by the most recently appointed justices who had some minimum set of life expe- first set of histograms, are revealing. have since left the Court have riences—and thus some minimum On the transitory Court of the late devoted almost precisely the same age—in mind for nominees, those eighteenth century, the justices amount of time (again, in relative who wrote the Constitution made appointed in this period spent some terms) as the justices who were ele- some rough estimate of what propor- 15 percent of their lives on the Court, vated to the Court more than a cen- tion of a justice’s life would be spent but the justices appointed during the tury ago. Simply stated, if the on the Court. Has this percentage first half of the nineteenth century members of the Court are spending changed over time? devoted twice as long—some 33 per- “too long” on the Court, they have The answer to this question can be cent—of their years to sitting on the been doing so fairly steadily for found in Figure 4, which aggregates Supreme Court. Clearly, the lack of about 150 years. retirement provisions induced the Although the current Court is not

16. Carrington and Cramton, supra n. 1. justices to remain far longer than was included in Figure 4—those data are 17. Ward, supra n. 13, at 8. practical. As noted earlier, these jus- based on justices who are no longer

www.ajs.org JUDICATURE 13 living—one might calculate a related further in the first half of the twenti- figure for the present justices by sim- eth century, a period during which ply dividing their number of years on Americans lived under the same jus- Robert the Court by their present ages. This tices, on average, for less than 30 per- Jackson, who in exercise reveals that the median cent of their lives. 1954 amount of life-to-date spent on the By 1950, life expectancy for Amer- became Court is 25 pecent, a figure fairly com- icans had increased substantially to the last parable to the percentage over the nearly 70 years. So, even though the justice previous one and a half centuries. justices appointed after that date did to die in Without knowing what portion of not serve appreciably longer than office. their lives they will continue to devote their brethren over the previous 100 to the Court, however, this figure is years, they sat on the Court for just a obviously difficult to interpret. quarter of the average American’s lifespan. As a consequence, the sense of ill-health and the availability of Perceptions of tenure of turnover on the Court would have pension benefits.20 Likewise the Whatever the percentage of their lives been noticeably greater than it had potential problems of incapacitation that is spent on the Court, the justices been at any time since 1790. have not proven to be major compli- might still be seen as entrenched to Stated simply, although the pro- cations. To be sure, there are exam- the average citizen. How would Amer- portion of a justice’s lifetime spent on ples of aging justices evincing signs icans perceive turnover on the Court the Court has remained fairly stable of physical decline and losses of over time? To answer this question, for at least 150 years, the proportion mental acuity.21 But these signs have one must know something of U.S. life of the average American’s lifetime that a inevitably been followed by retire- expectancy at different periods. After justice spends on the Court has actu- ments soon after manifesting them- all, John Marshall’s time on the Court ally declined. Critics may well be con- selves. Indeed, the assertion that would have seemed much longer to cerned about citizens having to live life-tenured justices will remain on most Americans than would have under a Court controlled by justices the Court past their ability to con- William Brennan’s, even though both who long outlast those responsible tribute meaningfully is belied by the justices served virtually the same num- for appointing and confirming fact that they no longer remain on ber of years. them, but over time this problem has the Court indefinitely. The last time To take this into account, I have cal- become better, not worse. Seen in a sitting justice died while on the culated for the justices appointed in this way—that is, from the perspec- bench, William Rehnquist was serv- each historical era the median num- tive of the average citizen—the jus- ing as a . Rehnquist clerked ber of years spent on the Court and tices have been spending less, not for Justice Robert Jackson, who in then divided that number by U.S. life more time on the Court. 1954 became the last justice to die in expectancy for that era.18 These data, office. presented in the second set of his- No support Moreover, the length of service on tograms in Figure 4, place the jus- Taken together, the evidence does the Court is not wholly at odds with tices’ tenure in historical context by not support the argument that, the amount of time that many fed- indicating—for Americans living at measured either by age or length of eral officials serve in elected office. the time—the proportion of their service, lifetime tenure on the There are, for instance, fully 10 U.S. lives spent under the same justices. Supreme Court needs to be modi- senators who have served longer By this accounting, the tenure of fied or abolished. There do remain than the longest serving justice, the justices since 1801 has, in fact, objections, of course, but on the gotten shorter, not longer. The jus- whole they are either unsupported 18. Data on life expectancy are taken from tices appointed in the first half of the by experience or inconsistent with Fogel, THE ESCAPE FROM HUNGER AND PREMATURE DEATH, 1700-2100: EUROPE, AMERICA, AND THE nineteenth century had an impres- scholarly research. For example, sys- THIRD WORLD (New York: Cambridge University Press), Table 1.1; Centers for Disease Control, sive median tenure of 25 years, a tematic research has found no basis National Vital Statistics Reports, Vol.51, No.3, Decem- whopping 45 percent of an Ameri- for the frequently voiced worry ber 19, 2002, Table 12. Life expectancy is meas- ured at the year prior to the beginning of the time can lifetime. Thus, for many antebel- about strategically timed departures period, with the exception of those appointed lum Americans, some of the faces on that enable presidents to fill vacan- before 1800, where it is measured at the year 19 1800. the Supreme Court would have cies with ideological allies. Doubt- 19. See Amar and Calabresi, supra n. 1. remained unchanged for the better less there are examples of justices 20. Zorn and Van Winkle, A Competing Risks part of their lives! Following the who time their departures in just Model of U.S. Supreme Court Vacancies, 1789-1992, 22 POL. BEHAV. 145-66 (2000). decline in tenure after the Civil War, such a fashion, but statistical assess- 21. See Garrow, supra n. 11. 22 These data can be found at “Longest Serving this percentage drops, but the jus- ments that sort out the relative Senators,” http://www.senate.gov/pagelayout/ tices were still serving for more than impact of the factors that might lead reference/four_column_table/Longest_Serving_S 35 percent of the expected U.S. lifes- a justice to retire suggest that the jus- enators.htm and Ornstein, Mann, and Malbin, VITAL STATISTICS ON CONGRESS 1999-2000 (Washing- pan. This proportion declines still tices have retired principally because ton, DC: American Enterprise Institute), Table 1-7.

14 JUDICATURE Volume 89, Number 1 July-August 2005 William O. Douglas, and 3 of those salary; at any point thereafter, a jus- attempt to fix the boundary between 10 are presently in the Senate. tice may retire at 100 percent of that the regions of ability and inability, Indeed, in recent years, the composi- justice’s salary. would much oftener give scope to tion of the U.S. Senate has been just By this mechanism, appointees personal and party attachments and as unremitting as the lineup on the could be assured a lengthy tenure on enmities than advance the interests of Court; in half of the years between the Court (at most, 15 years) during justice or the public good.” 1991 and 2000, there were, on a per- which they could step down and It is certainly easy to see how the centage basis, more senators than draw a handsome annuity. At the current Court has shaped our percep- justices who had been holding their same time, presidents have no incen- tions. Yet recent calls for reforming offices for more than a dozen years.22 tive to select younger (and thus pre- tenure on the Supreme Court seem sumably less qualified) nominees, not to have considered some impor- A simple reform nor would they be penalized for tant historical context. It turns out If, in spite of these facts, one still selecting older nominees who, even that, contrary to some assertions, the wants to generate regular turnover on without extended service on the justices are not dramatically older nor the Court, there is a much simpler— Court, would be assured of the same are they serving considerably longer and proven—solution. Whatever attractive retirement up to the age of than critics would have us believe. It their commitment to public service 75. In either case, reverting to a 100 seems dubious, therefore, to craft any and legal policy, the justices are surely percent salary retirement would reform that is designed to meet a set concerned about their material well serve as a sword of Damocles for of circumstances that, at least statisti- being. In the past, Congress has facil- those justices inclined to remain. cally speaking, do not arise with a fre- itated retirements from the Court by This provides a highly attractive— quency sufficient to merit serious increasing the retirement benefit, and, one might argue, deserved— attention. Rather than adopting an and there is no reason to believe it option for those who have chosen to arguably punitive policy that forces would be any less effectual today. forgo the more lucrative alternative the justices off the Court, one might With a small strategic refinement, it of private practice for the sake of consider an alternative, such as the could be employed to entice justices public service. After all, the justices one I have sketched, which instead to retire on a regular basis. are quite underpaid relative to the rewards the justices for their service Since 1984, the members of the rest of the legal profession; associate on the Court. Court have been serving under the justices currently earn $199,200, a Whatever method one might advo- “Rule of 80.” Under the terms of the figure not substantially greater than cate, it bears emphasizing that the U.S. Code, a justice who, once hav- many first-year associates and several empirical case for modifying life ing reached the age of 65, may retire times less than the profits enjoyed by tenure is not a strong one. Seen in with full salary anytime after the sum partners in major firms.24 historical perspective, the tenure of of his or her age and years of service At the same time, this alternative the justices of the Supreme Court is as a federal judge equals or exceeds preserves the option of lifetime not dramatically at odds with the pat- 80.23 Generous though this may be, tenure. Those justices who are terns of Courts past, and to the extent there is little incentive under this inclined to remain until a later that the present Court is an outlier rule for qualifying justices to retire. retirement age may do so—but of within that historical trend, natural As long as justices know that they can course at a substantial financial loss. attrition seems an inevitable cure. g receive their full salary, those who are otherwise inclined to continue Conclusion serving on the Court have no induce- The Supreme Court has experienced KEVIN T. MCGUIRE is an associate professor of ment to relinquish their seats. Con- one of its longest periods without political science at the University gress could make it more tempting membership turnover, and some of of North Carolina at Chapel Hill. through the following policy—at any the justices have exceeded what ([email protected]) point prior to the age of 75 or 15 many consider to be an appropriate years service on the Court, whichever retirement age. Whether this means comes first, a justice may retire at 200 that the justices are serving “too Photo Credits percent of that justice’s current long,” however, is not obvious. CHIEF JUSTICE REHNQUIST. PHOTOGRAPHED BY DANE PENLAND, SMITHSONIAN INSTITUTION, COLLECTION, THE SUPREME COURT Because there is no objectively clear HISTORICAL SOCIETY. standard against which to measure JUSTICE STEVENS. PHOTOGRAPHED BY JOSEPH H. BAILEY, NATIONAL GEOGRAPHIC SOCIETY, COLLECTION, THE SUPREME 23. 28 U.S.C. 371. the justices’ tenure, one’s judgment COURT HISTORICAL SOCIETY. 24. Executive Order 13368, Adjustment of Cer- about the age or infirmity of the JUSTICE O'CONNOR. PHOTOGRAPHED BY RICHARD STRAUSS, tain Rates of Pay, Office of Personnel Manage- COLLECTION, THE SUPREME COURT HISTORICAL SOCIETY. ment (www.opm.gov/oca/compmemo/2005/ Court’s members is prone to be con- JUSTICE BRENNAN. PHOTOGRAPHED BY ROBERT OAKES, executiveorder2005pay.asp); Fisk, Staying the Court ditioned by one’s subjective view of NATIONAL GEOGRAPHIC SOCIETY, COLLECTION OF THE on Salary, THE NATIONAL LAW JOURNAL, August 6, SUPREME COURT OF THE UNITED STATES. 2001, at 1; and Federal the desirability of its policies. Alexan- JUSTICE HARLAN I. PHOTOGRAPHED BY MATTHEW BRADY, Bar Association, Federal Judicial Pay Erosion: A der Hamilton, aware of this danger, COLLECTION OF THE SUPREME COURT OF THE UNITED STATES. Report on the Need for Reform, August 2001 JUSTICE STORY. OFFICIAL PORTRAIT OF JUSTICE JOSEPH STORY, (www.fedbar.org/whitepaper.pdf). warned in Federalist No. 79 that “[a]n COLLECTION OF THE SUPREME COURT OF THE UNITED STATES.

www.ajs.org JUDICATURE 15