The hidden numbers
Silver, Isidore
l IHL THE CONSTITUTIONAL CONSEQUENCES OF THE "80 ELECTION The hidden numbers ISIDORE SILVER T HE ELECTION of 1980 is a landmark election--because of the numbers. The relevant numbers are 74, 72...
...In the case of Supreme Court Justices, "averages" are skewed by early resignations (John Jay at 50, Arthur Goldberg at 57) to pursue other careers or, at the other end, by those who persistently refuse to resign because of pride, fear, or other strong emotional reasons for remaining in the seat of power...
...had to wait for one presidential term to expire before he could start making Supreme Court appointments to break the Taft-Harding axis which represented a discredited legal and political philosophy...
...In 1980, that difference promises to take on critical dimensions...
...Since the average age of retireinent or death while in service of the ninety-two Supreme Court Justices who have served throughout our national history (apart from the present nine) is 68, it is likely that the next president will have a major opportunity to reshape the court in a way not seen since 1908 or 1920...
...Thus, the five present Justices over 72 would certainly be within what might be called a range of probable retirement age...
...The replication of the Taft-Harding" sandwich" in the form of Nixon-Reagan -- who between them may be responsible for nine or ten appointments to the Court--may yet occur...
...Yet, because of the fact that skewing I IIIII II III I - ISIDORE SILVER teaches constitutional law and history at the John Jay College of Criminal Justice in New York City...
...Carter has appointed more women and blacks, highly qualified women and blacks, than any predecessors, and one scholar recently called their credentials "even more distinguished than the overall credentials of the white males chosen by Carter and previous administrations...
...There are significant and interesting parallels between 1908 and 1980 (apart from the reversal of numbers...
...William Howard Taft was elected president in 1908 and, in his one term (his only term) had the opportunity to appoint six Justices...
...For some reason yet to be established, the general records of Democrats seem to be better, or at least different, ideologically different, in the realm of judicial appointment...
...That opportunity arose, in part, because four Justices were over 70...
...What might be called the HooverEisenhower-Ford tradition has stressed appointment of men fundamentally conservative but with open minds...
...Perhaps a more sophisticated data base would tell us something more about the relationship of "productive age" to "average retirement age," but it would suffice for the moment to note that the two may differ only by a few years...
...It is true that we should not be misled by "averages" since they tend to reveal little about the specific characteristics of the "population" studied...
...In addition to the five Justices he appointed as president, Taft influenced the appointment of another four (including himself) under Warren Harding's abortive presidency...
...While it might be difficult to forecast what types of judicial appointments (especially Supreme Court ones) might be made by Reagan, a pattern of potential Carter appointments can be discerned...
...Clearly if Ronald Reagan is elected and re-elected, for instance, it is virtually certain that he will appoint at least six Justices...
...In all fairness, it must be noted that one of the most implacable reactionaries was a Wilson appointee (the other was Louis Brandeis...
...The answer seems clear...
...Also, F.D.R...
...the fact that the appointee was a liberal, a Jew (and would be the second one...
...Ironically, it appears that the greatest distinctions lie precisely in the realm of judicial appointments rather than in the world of politics...
...Ironically, while everyone talks of Reagan's age (often by not talking of it), few think about the implications of a "Reagan Court" making social policy well into the next century...
...Even Justice Stewart, who is not yet 70, but who has served for 22 years, may be or soon become tired or bored...
...indeed, the historical parallels are discomforting...
...After all, Justices die or retire at different ages, and some may "hang on" (as Earl Warren tried to do twelve years ago) until assured that a successor will be chosen by the "right" president...
...Taft actually made five appointments (in one additional case, he shifted a sitting Associate Justice to the Chief Justiceship when that position became vacan0, and his influence dominated the Court for several decades, including the early New Deal...
...While Carter continues to appoint Democrats, for the most part they are able Democrats...
...It may be surprising to realize that the average retirement age of twentieth century Justices is 69, exactly the same age as 'their nineteenth century compatriots, despite presumed advances in longevity...
...Five Justices will reach their 75th birthdays within the next four years and a sixth, Justice Stewart, will be just ab~out ")0...
...p ARALLELS aside, it has been fashionable for liberal historians, commencing with Arthur Schlesinger in 1960, to argue that there really is a difference between Democrats and Republicans...
...Thus, two Republicans, serving a total of six years,'appointed ten Justices, three of whom served into the New Deal--and formed the crux of the opposition to fundamental political reform of the nation...
...While some titans have served until 90 (Oliver Wendell Holmes) or 85 (Hugo Black), they are rare when compar¢d with the host of compatriots who have retired in their early and mid-70s...
...Moreover, the "timing" of a resignation for political (or assumed political) purposes has recently been regarded with distaste, so that we can assume that most Justices will choose to retire when they feel it to be necessary...
...In contrast, the RepubliCans in general have had not one but two traditions...
...How likely is it that the next president--whoever he is-will actually have the opportunity described above...
...In contrast, Woodrow Wilson, a two-term president, only had the opportunity to appoint three Justices, two of whom served into the New Deal...
...Many have argued, today, that there will be little to choose from between Carter and Reagan, just as differences 1 August 1980:427 between Kennedy-Nixon in 1960 and Johnson-Goldwater in 1964 and Humphrey-Nixon in 1968 were perceived as being meaningless...
...operates in both directions, it may be true that "average" may well be useful for assessing the age at which problems of performance and productivity arise...
...Herbert Hoover chose Benjamin Cardozo in 1932 because Cardozo was the most eminent judge in the nation...
...The relevant numbers are 74, 72 (three times), 7 l, and perhaps 65 and 63, the ages of seven present members of the Supreme Court...
Vol. 107 • August 1980 • No. 14
