THE ACTUARIAL BRANCH: WHERE POLICY IS SET BY WHO OUTLIVES WHOM

FACT: The Constitution says federal judges hold office “during good Behaviour.” In 1789, when life expectancy at birth was under forty and the Court’s docket was thin, that was a reasonable way to secure judicial independence. It now means something the Framers never priced in: a single appointment can shape American law for thirty to forty years, and the timing of that appointment is decided by actuarial accident.

The distortions compound. Most justices now serve at least twenty years and many serve more than thirty. No new justice joined the Court between 1994 and 2005 — eleven years, three presidential terms, zero vacancies. Then two arrived within four months. One president may appoint none; the next may appoint three. Nothing about that distribution reflects an election, a mandate, or anything a voter did.

It changes behaviour, too, and not for the better. Justices time retirements to the party of the sitting president. Nominees are chosen younger and younger to maximise the length of the bet. Confirmation hearings have degenerated into performances precisely because everyone in the room understands the stakes are permanent. A seat that came up every eighteen years on a schedule would be worth arguing about. A seat that comes up when someone dies is worth going to war over.

America is also an outlier, which is the part most likely to surprise people. Every other major constitutional democracy caps its highest court — by fixed term, by mandatory retirement age, or both. The United States alone combines a powerful constitutional court with unlimited tenure and no age limit.

A branch of government should not be governed by luck, and this one is.

The most-discussed fix is eighteen-year staggered terms, with each president appointing a justice every two years — so every four-year term yields exactly two appointments, no more and no less. Senators Whitehouse, Booker, Blumenthal and Padilla have reintroduced legislation to that effect, and a House version is filed as well. Whether Congress can do this by statute or needs a constitutional amendment is genuinely contested among scholars — that is an honest legal dispute, not a dodge.

What is not contested is the public. A 2025 PRRI survey found term limits supported by 85% of Democrats, 76% of independents and 67% of Republicans. Roughly 65% back the eighteen-year model specifically. On a question where the parties agree this completely, the usual excuse — that the country is too divided — simply does not apply.

OPINION: There is a decent argument for life tenure: a judge who never faces reappointment never has to please anyone. That is a real value and worth protecting. But independence and permanence are not the same thing, and eighteen years is not a short leash — it is longer than most Supreme Court justices served for the Republic’s first century. What we have instead is a system where the composition of the most powerful court in the world turns on the health of a handful of septuagenarians, and where the rational move for every participant is to hope. Nobody designed this. We simply never got around to fixing it — and the people who could are the ones you elect.