107. Presidents and Justices

On the eve of the presidential election, a brief reflection on the quirky and unpredictable math of Supreme Court appointments per presidential term

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

Fortunately, there is not (yet) any election-related news to cover in this week’s “Long Read.” It also seems likely that folks are rather … distracted. So I thought I’d focus mostly on the news in this week’s issue, and use the “Long Read” to provide some potentially interesting (if not remotely predictive) data about the frequency of Supreme Court appointments per presidential term. Obviously, there may be quite a bit more to say as soon as Wednesday or Thursday. But it might be helpful, before all the votes are counted, to make the modest but potentially significant point that, if history holds (and that may be a big “if”), whoever wins on Tuesday could potentially expect to make at least two appointments to the Court between January 2025 and the 2028 election.

But first, the news.

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On the Docket

I think it’s safe to say that the two biggest developments out of the Court last week were Wednesday’s ruling in the Virginia election roll-removal case and Friday’s ruling in the Pennsylvania naked ballots case. Last Friday’s extra issue covered the Virginia ruling in detail; and there isn’t much to say about the Pennsylvania ruling other than that the justices decided remarkably little in denying the RNC’s application to freeze a ruling by the Pennsylvania Supreme Court. Indeed, Justice Alito’s separate “statement” respecting the denial, which was joined by Justices Thomas and Gorsuch, went out of its way to stress just how little the Court had decided—and just how little, in that posture, it could decide. There’s nothing in Friday’s ruling that precludes the justices from stepping back in if (1) the presidential election in Pennsylvania is super close; and (2) the difference might turn on whether certain provisional ballots are (or aren’t) counted.

Beyond the Virginia and Pennsylvania rulings, the Court resolved three other emergency applications last week. Two denied requests from RFK Jr. to be taken off the ballots in Wisconsin and Michigan, respectively (the only public dissent from either was Justice Gorsuch’s in the Michigan case). And the third denied a stay of execution, over no public dissents, to Richard Moore, who was executed by South Carolina on Friday evening.

The only other “news” out of the Court last week was the release of the January 2025 argument calendar—which is bereft of blockbusters. I still think that, even without accounting for any potential election-related disputes, there are some massively important constitutional cases left among those in which the justices will grant certiorari between now and January to fill out the docket for the current term. But at least for now, it’s just undeniable that the caseload as it currently stands doesn’t have anywhere near the number of high-profile disputes that we’ve seen in the last few terms.

Turning to this week, and speaking of the rest of the docket, we expect a regular Order List at 9:30 ET that could include a few additional grants of certiorari. And the justices will be on the bench at 10:00 ET for the beginning of the November argument session—starting today with a technical case about the False Claims Act and the E-Rate program, a massively important set of federally administered discounts (via the Universal Service Fund) for schools, libraries, and health-care providers when it comes to telecommunications services. This is likely to not be the Court’s last encounter with E-Rate this term; a series of pending petitions, including one from the federal government, are seeking review of an en banc Fifth Circuit ruling that would have the effect of heavily impairing—if not totally gutting—it. I’m planning to write more about those cases, which have been distributed for the justices’ Conference on November 15, as soon as the dust settles from the election.

We certainly don’t expect any rulings in argued cases this week. If we get any orders beyond the ones coming at 9:30 this morning, they’ll be on emergency applications—perhaps including the pending application in the parole-in-place immigration case about which I wrote last Thursday.

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The One First “Long Read”:
Appointments Per President

There will be a lot to say, depending upon what happens tomorrow, about the role the Supreme Court played in affecting how voters approached the election—and about what the results of the election portend for the Court going forward. For today, though, I thought I’d focus on something far more prosaic: a quick quantitative look at how Supreme Court appointments have, over time, been divvied up across presidential terms.

It turns out, perhaps unsurprisingly, that former President Trump’s first term was a bit of an outlier on the high side (he was the first President with three or more appointments in his first term since Nixon, and the first one-term President with three appointments since Hoover). More than that, the presidents to serve since Nixon have, with the exception of Trump, averaged only 1.2 appointments per term. Some of that is, quite obviously, a reflection of how much longer justices are serving, on average, these days than as recently as the mid-twentieth century. Some of it is also a result of contemporary politics.

But as much as the justices may try to time their resignations to maximize the ability of a President of a particular party to appoint their successor, (1) that’s not a new thing; and (2) there are plenty of examples historically—and recently—of justices whose declining health (or, even, death while still in office) forced the issue. In other words, as confident as folks might be today about what kind of turnover we might expect on the Supreme Court depending upon who wins tomorrow’s election (and who controls the Senate in the 119th and 120th Congresses), history is full of examples in which what actually happened … confounded expectations. As the old New York Lottery commercials put it, “Hey, you never know.”

To that end, here’s a chart of the number of appointments each President has had. The left-hand side sorts the data from the highest per-term average to the lowest (you probably wouldn’t have guessed the clubhouse leader), with each of the last seven presidents highlighted in yellow; the right-hand side lists the totals for every President in chronological order.¹ I leave to you what conclusions, if any, can be drawn from this data—other than to note that the median across the dataset is 2 appointments per term; whereas the mean is approximately 2.1.

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SCOTUS Trivia: The Last President to Appear in Court

Given the theme of presidents and justices, I was looking for trivia in which the roles were at least somewhat reversed. Obviously, only one President has also served on the Supreme Court (Taft). The only other person to serve as President after being nominated to the Court is John Quincy Adams.

I’ve written before about the strange-but-true examples of presidents (including JQA) arguing in front of the Supreme Court after they were President. And, quite obviously, none have argued in front of the Court while they were President. But at least a handful of presidents have formally appeared before the Court while in office—almost always to present the credentials and commission of a newly confirmed justice. Perhaps the most famous of these episodes is when President Nixon appeared before the Court in June 1969 to present the newly commissioned Chief Justice Warren Burger—along with remarks that provoked a rather pointed response from outgoing Chief Justice Earl Warren.

It turns out that there’s exactly one more recent episode of a President formally appearing in front of the Court to present a new justice—when President Gerald Ford appeared on December 19, 1975, to present Justice John Paul Stevens, who had just been confirmed to fill the vacancy created when Justice William O. Douglas stepped down on November 12 (49 years ago next week). Suffice it to say, Ford’s appearance at the bar was rather less testy than Nixon’s had been six-and-a-half years earlier. And even though three presidents since Ford have been lawyers, none have formally appeared in public session to present justices who they had appointed to the Court.

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I hope you have a great week. And, for all of our sakes (including the Court’s), I hope that the election and its aftermath goes smoothly.

1. For presidents who served part of a term, I rounded to two decimal places the total number of days they served out of a four-year (1461-day) term. Two extremely pedantic notes to that end: First, although 1900 was not a leap year, President McKinley served all of his first (1460-day) term, and his second term would have been 1461 days. Second, although FDR’s first term was less than 1461 days (because the Twentieth Amendment, which moved inauguration from March 4 to January 20, went into effect during it), I counted his overall time in office—from March 4, 1933 to April 12, 1945. Thus, although he served far more than 0.03 of his fourth term, his cumulative time in office was 3.03 terms. Yes, I need better hobbies.