Fact check: Will three Supreme Court justices be past the court's average retirement age on election day?
January 14, 2016
By Charles Aull
“On Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age. The next president could easily appoint more than one justice,” wrote Democratic presidential candidate Hillary Clinton in an op-ed published by the Boston Globe on January 8. Her statement underscored the article’s central thesis: “There’s a lot at stake in this election. Nowhere is this clearer than in the U.S. Supreme Court.”[1]
Clinton is not the only candidate for elected office this year who has highlighted the likelihood of one or more appointments to the court in the coming years. Republican and Democratic candidates for the presidency and the Senate—which holds the responsibility of approving the president’s nominees—have made this issue a critical component of their efforts to mobilize their respective bases. But what does the data have to say about the retirement habits of Supreme Court justices?
What are the ages of current sitting justices?
We start with the ages of all nine current justices, which are shown in the table below. One justice, Ruth Bader Ginsburg|Ginsburg, is already over 80. Two more, Antonin Scalia and Anthony Kennedy, will be older than 80 by November—well before, in fact. Scalia turns 80 in March, while Kennedy follows suit in July. One other justice, Stephen Breyer, won’t be too far away. He turns 78 in August.
| Current ages of Supreme Court Justices | ||
|---|---|---|
| Justice | Current age | Birthday |
| Samuel Alito | 65 | 4/1/1950 |
| Stephen Breyer | 77 | 8/15/1938 |
| Ruth Bader Ginsburg | 82 | 3/15/1933 |
| Elena Kagan | 55 | 4/28/1960 |
| Anthony Kennedy | 79 | 7/23/1936 |
| John Roberts | 60 | 1/27/1955 |
| Antonin Scalia | 79 | 3/11/1936 |
| Sonia Sotomayor | 61 | 6/25/1954 |
| Clarence Thomas | 67 | 6/23/1948 |
| Source: Ballotpedia, Supreme Court of the United States | ||
What is the average retirement age of SCOTUS justices?
For the average retirement age of Supreme Court justices, we turned to a 2006 study by Steven Calabresi and James Lindgren, who published an article in the Harvard Journal of Law and Public Policy arguing for term limits for the court. The study appeared shortly after the swearing-in of Justice Samuel Alito, who succeeded Sandra Day O'Connor on January 31, 2006 (O'Connor was almost 76 at the time). According to Calabresi and Lindgren, between 1971 and O’Connor’s retirement in 2006, the average age at which justices left the court—either through death or retirement—was 78.7 years old. Only one died while in office: William Rehnquist on September 3, 2005. He was 81.[2]
We should point out that 78.7 has not always been the average. Because of longer life expectancy, the changing nature of the job and—possibly, as Calabresi and Lindgren suggest—"political motives" that have grown out of the "increased politicization" of the court, the age at which justices typically leave office has, by-and-large, steadily increased since the eighteenth century. As seen in the chart below, between 1789 and 1820, the average age of retiring or deceased justices was 58.3. Now (1971 to 2006) it is 78.7, a 35 percent increase.[2] If the trend continues, then the average departure age from 1971 to 2006 could be less instructive for the present than it seems on the surface. The last justice to leave office illustrates this point. Justice John Paul Stevens retired in 2010 when he was 90 years old—well over the 78.7-year average.
Nonetheless, as Clinton and others have noted, there are indeed three justices who will be over 80 years old this November, and 80 is almost a year-and-a-half past the average departure age for justices who left the bench between 1971 and 2006.
Conclusion
Does this all mean that the next president will likely have the opportunity to nominate one or more justices? It’s a good probability. Though the justices themselves have offered few clues in this regard, most experts and political commentators agree that at least one retirement in the next four years is highly likely (see examples here, here and here). But on the issue of the justices’ current ages and the average age at which they usually leave the bench, we can be more certain. Clinton was correct when she wrote, “On Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age.”
Launched in October 2015 and active through October 2018, Fact Check by Ballotpedia examined claims made by elected officials, political appointees, and political candidates at the federal, state, and local levels. We evaluated claims made by politicians of all backgrounds and affiliations, subjecting them to the same objective and neutral examination process. As of 2025, Ballotpedia staff periodically review these articles to revaluate and reaffirm our conclusions. Please email us with questions, comments, or concerns about these articles. To learn more about fact-checking, click here.
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