do an actuarial simulation to test out any
The results of the simulation for this
term limit approach show that it is successful in ensuring more turnover of the
court. On average, there would likely be 49
new appointees over the next 100 years,
once again assuming a new appointee in
2017. By definition, the longest-serving
justice in the future would be 18 years.
This approach would also lower the
number of justices who would die in office to seven over the next 100 years. The
reason is simple: There would likely be
fewer old justices on the bench. The lack of
randomness of the timing of new appointments may be a weakness in the system.
The likelihood a president serving a full
eight years without the ability to appoint
a Supreme Court justice falls to 4 percent.
But a real weakness of this simplified
approach to term limits is that the likelihood a president serving eight years can
appoint the majority of justices jumps to
41 percent, based on a simulation that
assumed all current justices would be
allowed to sit another 18 years if they
opted to. In the history of the republic,
only five presidents—other than George
Washington, who assembled the court
from scratch—have been able to appoint
a majority of justices on the court.[ 2]
Linking Limits to Seats
But let’s change the term-limit plan and
link the term limit to a judicial seat rather than the individual, with staggered
terms that would have a seat coming up
every four years (during the second year
of a presidential term). A justice could
be reappointed to his/her previous seat
if the president and Senate so chose.
The simulation assumed a term-limit
plan that would have the seat of chief jus-
tice come up first for reappointment in
2018 and then each other seat would come
up for reappointment every four years after
that. The order of the seats starting in 2022
would be 1, 2, 3, 4, 6, 8, 9, and finally 10.
Under this methodology, it is possible
that terms could be very short (when a
justice dies or retires with only a minimal
amount of time left in the seat’s term). This
should not be too big a problem, as there
would be no prohibition against reap-
pointment of the same justice in the seat.
The results of the simulation show
that in the next 100 years, there would
likely be 42 new Supreme Court judicial
appointees. This assumes one of the 42 is
at the start of the simulation because of
the current vacancy. There is a 5 percent
chance that there will be at most 37 new
appointees and a 5 percent chance that
there could be at least 47 new appointees.
Under this approach, there is only a
13 percent chance that a two-term president could elect a majority of Supreme
Court justices. There is no chance that a
president serving a full term would not
have the ability to make an appointment.
Because justices can serve longer than an
18-year term, there are more appointees
as a result of deaths—an expected 16 justices, or 38 percent.[ 3] Some randomness
as to when seats open up is probably
healthy for the court.
Assumptions Underlying the
The projections were calculated using a
Monte Carlo simulation ( 10,000 trials).
The mortality assumptions were based on
2012 IAM tables with the Projection Scale
G2 improvement, given the justices are by
definition still working and likely have access to the best medical care available.
Each new appointee was assumed to
be 55. The average age of the last 50 appointees at time of oath was 54. 6. The
average of the last 25 was 53. 5.
The sex of each new justice was
switched from the last new appointee.
No voluntary retirements or res-
ignations were assumed because any
retirement assumption would be arbi-
trary. But there is no doubt the trend is
for longer-serving justices. Four current
serving justices appear on the list of the
top 40 longest-serving justices.
For the simulation of term limits by
seat, it was assumed that if a justice was
under the age of 75 at the time his or her
seat came up for reappointment, the justice would be reappointed.
I believe the impending decline in Supreme Court appointments is yet another
challenge brought about by increasing
longevity with which both society and
our institutions must contend. While
the exact consequence of having justices
typically serve three or four decades on
the court is unclear, it’s important to
recognize its potential impact on the government’s essential system of checks and
balances. Term limits may or may not be
the answer, but I think it’s certainly time
we start asking the questions.
DAVID FISHBAUM, MAAA, FSA,
FCIA, is managing partner of Oliver
Wyman’s actuarial practice.
This article is solely the opinion of its author.
It does not express the official policy of the
American Academy of Actuaries; nor does it
necessarily reflect the opinions of the Academy’s
individual officers, members, or staff.
[ 1] Eleven years elapsed between the appointments
of Justice Joseph Story and Justice Smith
Thompson, and also between Justice Stephen
Breyer and Chief Justice John Roberts.
[ 2] Andrew Jackson, Abraham Lincoln, William
Howard Taft, Franklin Roosevelt, and Dwight
Eisenhower. The longest a president’s majority
has lasted was 16 years.
[ 3] Including the justice assumed to be appointed
in 2017 to fill Justice Scalia’s seat.
Average Age at Oath
Group of Most Recent Appointees
Last10 11–20 21–30 31–40 41–50
Average Tenure of Retirees
Group of Most Recent Retirees
Last5 6–10 11–15 16–20 21–25