Vail Law: Singing with the Supremes (Court, that is), Part 2
In the first part of this series, I introduced The Supremes, the justices of the United States Supreme Court, the highest court in the land. We shared a bit of the Court’s colorful history and noted that anything other than white males serving on the Court is a fairly new development. Three of the four women who have ever served as justices are presently serving on the bench.
The youngest justice ever appointed was Joseph Story, 32 at the time of his appointment in 1812. The oldest was Charles Evans Hughes, who was 67 at the time of his appointment as Chief Justice in 1930. Hughes had previously been appointed to the Court as an associate justice in 1910, at the age of 48, but had resigned in 1916 to run for president. Story went on to serve for 33 years, while Hughes served 11 years after his second appointment.
The oldest justice at the time of his initial appointment was Horace Lurton, 65 (1909). Lurton died only four years on the Court. The oldest sitting justice to be elevated to Chief Justice was Hughes’ successor, Harlan Fiske Stone, who was 68 at the time of his elevation in 1941. Stone died in 1946, only five years after his elevation. The oldest nominee to the court was South Carolina senator William Smith, nominated in 1837, then aged around 75 (he did not know his exact age). The Senate confirmed Smith’s nomination, but Smith declined to serve.
Of the justices currently sitting, the youngest at time of appointment was Clarence Thomas, who was 43 years old at the time of his tumultuous confirmation. As of the beginning of the 2016–17 term, Elena Kagan is the youngest sitting justice, at 56 years old. The oldest person to have served on the Court was Oliver Wendell Holmes, Jr., who stepped down two months shy of his 91st birthday. John Paul Stevens, second only to Holmes, left the court in June 2010, two months after turning 90. Stevens is still kickin’ it — now in retirement in Chicago — at 96 years old.
The average age of the Court as a whole fluctuates over time with the departure of older justices and younger folks who fill their seats. Even so, the current average age of the Court is 71 years old. After Sonia Sotomayor was appointed in August 2009, the average age at which current justices were appointed was about 53 years old. Nominee Neil Gorsuch will turn 50 in August.
The longest period of time in which one group of justices has served together was in our very recent history, from Aug. 3, 1994, to Sept. 3, 2005 when there were no new appointments.
Length of tenure
From 1789 until 1970, justices served an average of 14.9 years. Those who have stepped down since 1970 have served an average of 25.6 years. The retirement age — although, as noted earlier, retirement is voluntary — has jumped from an average of 68 pre-1970 to 79 for justices retiring after 1970. Between 1789 and 1970 there was a vacancy on the Court once every 1.91 years. In the next 34 years since the two 1971 appointments (Lewis Powell and William Rehnquist), there has been a vacancy, on average, once every 3.75 years. As such, since Nixon, the typical one-term president has had one appointment opportunity.
As you may have guessed, one of the privileges of the presidency is the right to appoint Supreme Court justices. However, there’s a catch. Well, two catches, really. First, Supreme Court justices are really nominated rather than appointed by the president. As we will see in the coming days and weeks with the Gorsuch nomination, the Senate must confirm the nominee and it ain’t always automatic. For those of you of a certain age, think back to Harold Carswell (1970); Robert Bork (1987) from whence the term “being Borked” arose; and Douglas Ginsburg (1987), who technically withdrew after it came to light that he had smoked a little demon weed while a student in the ’60s — oh, how times have changed!
The second catch is, as a justice of the United States Supreme Court serves for life (or for however long he or she desires), it can well be (and has often been) that no vacancy comes about on the bench during a presidential term and, accordingly, the opportunity to nominate a justice does not avail itself.
And, while not exactly a third catch, sometimes justices disappoint. It is well known in the annals of the Court that a presumed liberal has a change of heart after being seated and, more often, a conservative may change his stripes to a more liberal hue. In fact, one prominent measure of judicial ideology — the Martin-Quinn score — suggests the general trend of many justices to liberalize as they age.
Why this matters
In any event, it is essential to understand why the nomination of Supreme Court justices is so important and to garner that understanding it is, in turn, essential to comprehend the structure of our form of government.
Other than the Fourth Estate of a free and open press, there are three branches of the federal government: the executive (the president and his appointed cabinet), the legislative (U.S. Representatives and Senators) and the judiciary (the U.S. Supreme Court and the lower federal courts — federal district courts which are the trial level for disputes, and the Circuit Courts of Appeal — in this region, the 10th Circuit Court of Appeals, which is centered in Denver. There are 11 Circuits, The 10th Circuit includes the states of Utah, Wyoming, Colorado, New Mexico, Kansas and Oklahoma).
For a case to be tried in federal court, generally speaking, there must be diversity jurisdiction and the amount in dispute must be at least $75,000. Diversity jurisdiction means, simply, that the disputants must be citizens of different states. Appeal from trial is taken to the Circuit Court of Appeals and then may advance to the United States Supreme Court. I use the word may intentionally in the preceding sentence as it is not a matter of right that a matter will be heard by the Supremes. Rather, the Supremes accept a matter for consideration upon a writ of certiorari (known among lawyers as simply “on cert”). On cert means that the Court has determined to hear a matter which has been appealed to it.
As a practical matter, the Supremes grant cert to less than 1 percent of the appeals submitted to them for hearing and, generally speaking, it grants cert to hot button issues — developing areas of law, and matters which, if heard, might help in resolving conflicting decisions which have been rendered in similar cases in the various circuits.
While the executive steers policy and the legislative branch creates law, it is up to the Supremes to interpret the law, always in the context of Constitutional interpretation and permissibility. Accordingly, as the United States Supreme Court is the final arbiter of the laws, having justices appointed to the Court who share a president’s philosophy of governance and Constitutional construction is a key legacy of any administration.
When the president gets a shot at an appointment, it’s like Christmas. But let’s save that for the next part in the series.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include: business and commercial transactions, real estate and development, family law, custody, and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, Robbins@SLBLaw.com.
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