Actuarial chance
A president may inherit several vacancies or none, so the composition of the Court can turn on death and retirement timing rather than a regular constitutional rhythm.
Democracy & law · Chapter 10
Courts That Are Independent and Accountable
Regular Supreme Court appointments, eighteen years of active service, senior-status rotation, transparent recusal, and an enforceable ethics framework.
Why irregular lifetime vacancies matter
The book identifies four structural effects: long tenure, chance timing, strategic retirement, and high-stakes confirmation.
Calabresi and Lindgren found average Supreme Court tenure of 14.9 years for justices leaving office through 1970 and 26.1 years for those retiring after 1970 in their 2006 study. The chapter uses that longer tenure as evidence that life tenure now produces much less regular vacancy timing than it did for much of U.S. history.
Strategic retirement
Life tenure creates incentives for justices to choose retirement timing partly in light of who controls appointments, which makes departure timing part of political strategy.
Confirmation stakes
When a seat may shape doctrine for decades and the next opening is unknowable, each vacancy becomes unusually consequential. The proposal tries to regularize timing rather than change case outcomes.
Calabresi & Lindgren’s comparison of earlier departures with post-1970 retirees.
The Court adopted its first written Code of Conduct for Justices. The chapter argues that publication without an external enforcement mechanism does not settle the accountability question.
The book’s constitutional design preserves life tenure in the federal judiciary while rotating active Supreme Court service into senior status.
18-year term-limit clock
Compare irregular vacancies with a fixed two-year appointment schedule.
This is a timing model only. The irregular lane is generated from a synthetic vacancy process; it does not use any current justice's age, health, ideology, retirement plans, or expected tenure.
Synthetic irregular vacancies
18-year rotation schedule
Appointments per four-year block, irregular0–0σ 0
Appointments per four-year block, rotation2fixed by the schedule
Scheduled appointments in 40 years20one every two years
Senior status, not removal
After eighteen years of active Supreme Court service, a justice remains an Article III judge at full pay. The proposal rotates the active seat rather than terminating federal judicial office.
Neutral temporary rotation
Temporary vacancies are filled from eligible senior justices under a neutral published rotation rather than creating a new permanent seat.
Ethics infrastructure
The book adds an enforceable judicial ethics body without removal power, written recusal explanations, gift and travel disclosure, and a prohibition on individual stock holdings.
| Research period | Average service before leaving the Court | Why the chapter uses it |
|---|---|---|
| Justices departing, 1789–1970 | About 15 years | Historical baseline for life tenure before modern multi-decade service became common. |
| Justices departing, 1971–2006 | More than 26 years | Calabresi and Lindgren’s research illustrates the lengthening of active service that motivates a regular appointment cycle. |
Historical averages describe groups of justices; they do not determine how long any current justice will serve. The proposed 18-year schedule is a constitutional design choice, not a forecast.
The proposal in brief
Chapter framework
Text below is transcribed from the first edition, with only print-layout hyphenation removed.
Goal
A Supreme Court whose composition follows elections predictably and whose members are bound by enforceable ethics, without any loss of independence in deciding cases.
Instrument
Eighteen-year terms of active service with an appointment in every odd-numbered year; lifetime senior status at full pay; a neutral rotation for temporary service; an enforceable code of conduct administered by a judicial body without removal power; published recusal decisions; a ban on individual stock holdings.
Who pays
Negligible budgetary cost.
Who implements
Congress (implementing statute); the federal judiciary (ethics body, rotation); the President and Senate (appointments).
Legal vehicle
Constitutional amendment for terms and the ethics structure (Amendment Four); statute for recusal transparency, disclosure, and stock divestiture, which Congress can enact now.
Principal risk
Regular appointments tie the Court’s composition closely to recent presidential elections, making it more responsive to majorities than a countermajoritarian institution should be.
Measure of success
Every President appoints two justices per term; no seat is vacant for more than six months; every recusal decision is published with reasons; public confidence in the Court, measured by established surveys, recovers from its recent lows.
Failure trigger
If, after two full appointment cycles, confirmation fights have grown more intense rather than less and confidence has not recovered, the eighteen-year design has not delivered its central promise and the term length and Court size should be revisited.
The Strongest Counterargument & the Author's Response
Best case against
Regular appointments could make confirmation battles more frequent and tie the Court’s composition more closely to recent presidential elections. Critics also argue that fixed active-service terms make a countermajoritarian institution too responsive to electoral cycles.
The author's response
The chapter argues that each appointment would carry less weight because every presidential term receives two predictable appointments. It preserves lifetime federal judicial office through senior status and requires the core term structure to be adopted constitutionally rather than imposed by ordinary court-packing legislation.
What remains uncertain
The chapter explicitly calls the predicted reduction in confirmation intensity a prediction, not a certainty, and sets a failure trigger if conflict grows rather than falls.
Evidence & sources