Jimmy Carter served a full four years and left office without seating a single justice on the Supreme Court of the United States. Richard Nixon served five and a half years, resigned in disgrace, and seated four, including a Chief Justice. George Washington seated ten because the bench did not exist until he built it. Andrew Johnson seated none because the Senate, with the help of a Congress that simply shrank the bench from ten members down to seven during his tenure, refused to let him. William Henry Harrison and Zachary Taylor each got zero, but neither lived long enough to plausibly try. The lifetime tenure clause embedded in Article III, paired with the political randomness of retirement and the demographic accident of death, distributes a presidency’s most enduring power according to a logic that defies the language of merit, ideology, or even effort. It is a logic of timing.

This article tests the variance claim across every presidency from George Washington through Bill Clinton, walks the appointment counts seat by seat, names the InsightCrunch Supreme Court Appointment Variance Analysis as the organizing artifact, and addresses head on the strongest counter to a pure luck account: that presidents shape their own appointment opportunities through political pressure on sitting justices, through Senate maneuvering, and through the calculated holding open or filling in of vacancies. The luck framing is part of the story. It is not the whole story. The accurate account is that the Article III lifetime structure amplifies both genuine accident and political skill, with a residue of variance that no theory can fully smooth out. Carter, in this account, was neither incompetent nor unlucky in any single sense; he was the unique modern case of a full term that produced no organic vacancies and no political opening to manufacture one.

How the Bench Got Built and Why Size Matters

The Judiciary Act of 1789 created a six-member federal high court, with one Chief Justice and five Associates. Washington filled all six seats in the first session, plus four more across his eight years as initial appointees resigned, died, or in the case of John Rutledge refused to return after riding circuit. The number ten is misleading if it suggests Washington had ten opportunities to remake an established institution. He had ten opportunities because the institution had no existence to remake. The bench he constructed was the bench, in a way that no successor would ever again experience.

The Judiciary Act of 1801, the so-called Midnight Judges Act, briefly reduced the seat count to five but was repealed before any vacancy occurred at that lower number. The 1807 act expanded the bench to seven to accommodate a new western circuit, giving Thomas Jefferson his third and final pick. The 1837 act expanded the bench again to nine to match the growing number of judicial circuits, giving Andrew Jackson his sixth pick and Martin Van Buren two picks at the end of Jackson’s policy line. The 1863 act expanded the bench to ten, giving Lincoln his fifth pick and creating the seat that Stephen Field would hold for thirty-four years. The 1866 act, passed specifically to prevent Andrew Johnson from filling vacancies, set the bench at seven on the next three deaths or retirements; the actual count fell to eight before the 1869 act, passed under Ulysses Grant, restored and locked the size at nine, where it has remained for 156 years as of this writing.

That structural history matters because it explains why early presidents, particularly Washington, appear to have outsized appointment counts. Washington’s ten and Jackson’s six are inflated by court growth and by the higher mortality rates of the early republic, where justices who survived to take their seats often did not survive to retire from them. Once the bench stabilized at nine seats in 1869, and once medical advances extended the average tenure of justices toward the modern norm of two decades and more, the supply of vacancies tightened. The post-1869 mean is roughly two appointments per four-year presidential term. Carter at zero is two standard deviations below the mean. Nixon at four in five years and four months is more than two standard deviations above. The variance is not a statistical illusion; it is the real distribution of presidential opportunity.

The lifetime tenure mechanism, written into Article III as “during good Behaviour,” was a 1787 compromise that the Framers understood would create staggered turnover. They did not foresee, and could not have foreseen, that the staggering would become so uneven that one four-year term might produce six vacancies (Taft, 1909 to 1913, after a generational cohort began to retire and die in concentrated sequence) and another might produce zero (Carter, 1977 to 1981, after the Burger Court’s central justices, all relatively recent appointees, simply held on). The Framers wrote a constitutional rule that made staggering inevitable in expectation and unequal in any single realization.

The InsightCrunch Supreme Court Appointment Variance Analysis

The artifact that organizes the rest of this article is a per-presidency variance table covering every president from Washington through Clinton, with five columns: total confirmed appointments, total years in office, appointments per year of tenure (the luck index), failed nominations including rejections and withdrawals, and a notation of the long-term ideological impact on the bench. The full table is reconstructed in prose below, but the headline finding is straightforward: the luck index ranges from zero (Van Buren, William Henry Harrison, Zachary Taylor, Andrew Johnson by the political-blockade route, Carter) to roughly 1.25 per year (Washington and Taft in tied first place), a forty-eight-fold spread for the nonzero range and an infinite spread when zero presidents are included. No serious account of presidential power can ignore variance of this magnitude, and no luck-only account can survive the complication that several of the high-count presidents, including Lincoln and Reagan, operated political strategies that converted ambiguous vacancies into firm appointments.

The variance index alone is not enough. Two presidents with identical counts can have radically different long-term impacts depending on the age, ideology, and tenure length of the specific justices appointed. Reagan’s four (Sandra Day O’Connor 1981, William Rehnquist’s elevation to Chief Justice 1986, Antonin Scalia 1986, Anthony Kennedy 1988) seated jurists who served collectively for roughly 130 person-years on the bench and tilted the Court’s center of gravity rightward through both Bush administrations and into the next century. Truman’s four (Harold Burton 1945, Fred Vinson as Chief Justice 1946, Tom Clark 1949, Sherman Minton 1949) seated jurists whose collective tenure was shorter and whose ideological coherence was lower; Vinson died in 1953 after only seven years, opening the seat for Eisenhower’s selection of Earl Warren and inadvertently launching the Warren Court. Counting raw appointments without weighting for tenure length and ideological coherence understates and overstates impact in opposite directions. The variance analysis flags this with a long-term-impact column that is qualitative rather than numerical.

A third dimension of variance, often missed in the headline counts, is the rejection and withdrawal rate. The successful appointment number is not the relevant denominator if a president faced an obstructionist Senate. Nixon successfully appointed four but had two rejected (Clement Haynsworth in 1969, G. Harrold Carswell in 1970) before Harry Blackmun was confirmed for the same seat in 1970. Reagan successfully appointed four but had Robert Bork rejected in 1987 before Anthony Kennedy was confirmed for that seat in 1988. George H.W. Bush successfully appointed two (David Souter in 1990, Clarence Thomas in 1991) with Thomas confirmed by a 52-48 margin after the Anita Hill hearings. The variance in attempted appointments is wider than the variance in successful confirmations, and a meaningful luck account must include the political resistance dimension.

Washington: Ten Seats Because the Bench Did Not Yet Exist

The first six federal justices took office in 1790: John Jay as Chief Justice, John Rutledge of South Carolina, William Cushing of Massachusetts, James Wilson of Pennsylvania, John Blair of Virginia, and James Iredell of North Carolina (replacing Robert Harrison, who was confirmed but declined to serve). Washington’s geographic balancing, two New Englanders, two mid-Atlantic Federalists, two Southerners, set a precedent of regional distribution that informally governed Court composition for the next century. Within the first three years, Rutledge resigned to become Chief Justice of the South Carolina Court of Common Pleas, opening a seat that Washington filled with Thomas Johnson of Maryland in 1791. Johnson resigned within two years; Washington filled the seat with William Paterson of New Jersey in 1793. Wilson’s death in 1798, after Washington’s term, was filled by John Adams.

Jay’s resignation in 1795 to become Governor of New York created the first Chief Justice vacancy. Washington’s recess appointment of Rutledge, returning him from South Carolina to the federal bench, was politically catastrophic; Rutledge had publicly denounced the Jay Treaty, the Senate rejected him by a 10-14 vote in December 1795, and Washington turned to Cushing, who declined the elevation, and then to Oliver Ellsworth of Connecticut, confirmed in March 1796. The Rutledge rejection is the first failed Supreme Court appointment in American history and a useful early data point: even Washington, with his unmatched political authority, faced Senate resistance when the political moment was wrong. The Jay Treaty had divided the Federalist coalition; Rutledge’s intemperate public statements made him an avatar of the anti-treaty position; a Federalist Senate refused to confirm a perceived defector. The lesson, learned and relearned by every president since, is that the lifetime tenure structure makes the Senate’s confirmation power exceptionally consequential and exceptionally jealous.

The remaining Washington appointments filled gaps created by death (Blair 1796, replaced by Samuel Chase of Maryland) and resignation (Iredell’s death came in 1799 under Adams, not Washington). The ten Washington seats include eight Associates and two Chief Justices, with the Rutledge attempt counted in some tallies and excluded in others depending on whether confirmed Senate action counts the recess appointment or only the rejected nomination. The conventional count is ten confirmed appointments across two terms.

Why ten? Three reasons compound. First, the bench was new; six seats were filled at once in the opening session, an opportunity no future president would have. Second, the early Court was an unattractive job. The justices rode circuit, traveling thousands of miles annually to hold trial courts in the federal circuits, an exhausting duty that produced rapid resignations. Jay resigned to be Governor of New York; Rutledge resigned within months; multiple early justices saw the federal bench as a stepping stone or a burden rather than a culmination. Third, eighteenth-century mortality was high. Blair died at age sixty-four. Wilson died, debt-ridden and fleeing creditors, at fifty-five. Iredell died at forty-eight in 1799. The combination of a new institution, an unappealing job, and short life expectancies generated the vacancy rate that gave Washington his unmatched count.

Adams, Marshall, and the Federalist Exit

John Adams seated three justices in four years: Bushrod Washington of Virginia in 1798 (replacing Wilson), Alfred Moore of North Carolina in 1799 (replacing Iredell), and most consequentially John Marshall of Virginia as Chief Justice in 1801, replacing Ellsworth, who had resigned for health reasons. The Marshall appointment is the single most consequential judicial naming in American history, and it is also the cleanest example of how late-term opportunity, intersecting with political crisis, can shape institutional development for generations.

Marshall was the third choice. Adams initially offered the chief justiceship to Jay, who declined, citing the office’s intolerable circuit-riding burdens and his preference for the governorship of New York. William Paterson was considered and rejected by Adams’s Federalist Cabinet faction as too closely aligned with Hamilton, whom Adams was then feuding with. Marshall, then Adams’s Secretary of State, accepted on January 20, 1801, was confirmed January 27, and took his seat on February 4, less than a month before Jefferson’s inauguration on March 4. The Federalists, having lost the election of 1800, used the lame-duck period to fill the chief justiceship with one of their own and to pass the Judiciary Act of 1801 expanding the federal judiciary with sixteen new circuit judgeships, also filled with Federalists. Jefferson’s Republicans repealed the Judiciary Act in 1802 and eliminated those new circuit positions; they could not constitutionally eliminate Marshall.

Marshall served thirty-four years as Chief Justice, dying in office in 1835. His tenure spanned the presidencies of Jefferson, Madison, Monroe, J.Q. Adams, and Jackson, almost all of whom opposed his constitutional vision. The four foundational cases of American constitutional law (Marbury v. Madison 1803, Fletcher v. Peck 1810, McCulloch v. Maryland 1819, Gibbons v. Ogden 1824) were all Marshall opinions establishing judicial review, the sanctity of contracts against state interference, the implied powers of the federal government, and the broad reading of the Commerce Clause. Adams, defeated and bitter in 1801, set the institutional vise of the early federal judiciary that constrained five Republican presidencies. The lifetime tenure clause did what it was designed to do: it locked in a political moment whose direct authors had been repudiated at the polls.

This is the first major case in the variance analysis where appointment timing intersects with political crisis to produce outsized impact. Adams seated three justices across four years, a luck index of 0.75 per year, slightly below the post-1869 mean. The count is unremarkable. The impact, through Marshall alone, is incomparable. Counting appointments without weighting for which appointment, in which moment, will miss the whole story.

Jefferson, Madison, Monroe: Six Picks Across Twenty-Four Years

The first three Republican presidents, occupying the executive branch from 1801 through 1825, seated six justices combined: Jefferson three, Madison two, Monroe one. The luck index for this twenty-four-year span is exactly 0.25 picks per year, roughly one-third the post-1869 mean and one-fifth Washington’s rate. The reason is the Federalist holdover effect compounded by an unfavorable Marshall Court strategy of judicial perseverance.

Jefferson’s three appointments were William Johnson of South Carolina in 1804 (replacing Moore), Henry Brockholst Livingston of New York in 1806 (replacing Paterson), and Thomas Todd of Kentucky in 1807 (taking the new seat created by the 1807 act expanding the bench to seven). Johnson is the most interesting of the three: Jefferson nominated him specifically to be the dissenting voice on the Marshall Court, and Johnson did dissent extensively, becoming the first justice to develop dissent as a regular practice rather than an exception. He failed, however, to pull the Court Republican; Marshall’s intellectual dominance and his strategy of opinion unification, where the Court issued single opinions of the Court rather than seriatim opinions from each justice, kept the institutional voice Federalist even as the membership shifted.

Madison’s two appointments were Gabriel Duvall of Maryland in 1811 and Joseph Story of Massachusetts in 1812. Story, only thirty-two years old at appointment, became Marshall’s closest intellectual ally on the bench, served for thirty-four years, and after Marshall’s death emerged as the leading Federalist voice on the Court well into the Jacksonian era. Madison appointed a justice intended to be Republican; Story, who had been a Republican in Massachusetts politics, simply was not when ideology met the Court’s institutional gravitational pull. The lesson is one Joseph Biden’s advisers would understand a century and three-quarters later: justice nominees are not reliably predictable across the lifetime of a career, and the strongest constraint on a president’s ideological project is the unpredictability of who the nominee will become at year fifteen or year twenty-five of their tenure.

Monroe’s single appointment was Smith Thompson of New York in 1823, replacing Livingston. Thompson served until 1843, accumulating two decades on the bench, and like Story drifted across his tenure, becoming an early voice for slavery’s territorial limitation as the political climate shifted. Monroe served two full terms and seated only one justice, a luck index of 0.125 per year, lower than even his Republican predecessors. The post-1801 Republican drought is the variance analysis’s first major case of a structurally unfavorable timing window: the Federalist appointees of the 1790s, locked in by lifetime tenure, simply did not retire or die at a rate that gave the Republicans normal access to seats.

John Quincy Adams, the second one-term Republican president of the era, seated one justice (Robert Trimble of Kentucky, 1826, replacing Todd). Trimble died after two years on the bench; J.Q. Adams’s attempted second nomination (John Crittenden) was postponed by the Senate and the seat was instead filled by Jackson. The 1828 election’s transformation of the politics around the seat is itself a useful case study: the Senate did not formally reject Crittenden; it simply delayed action long enough to deny Adams the appointment and give it to his successor. The strategy of delay as denial, which the modern reader recognizes from much later episodes, has roots that reach back two centuries.

Jackson: Six Picks and the Transformation of the Bench

Andrew Jackson seated six justices in eight years, the second-largest count in American history after Washington and tied with William Howard Taft, who matched the count in a single term. Jackson’s six were John McLean of Ohio in 1830 (replacing Trimble), Henry Baldwin of Pennsylvania in 1830 (replacing Bushrod Washington), James Wayne of Georgia in 1835 (replacing William Johnson), Roger Brooke Taney of Maryland in 1836 as Chief Justice (replacing Marshall), Philip Pendleton Barbour of Virginia in 1836 (replacing Duvall), and John Catron of Tennessee in 1837 (taking one of the two new seats created by the 1837 act expanding the bench to nine).

The Taney appointment is the second-most-consequential elevation to the chief justiceship in American history, ranking only behind Marshall’s. Taney served twenty-eight years, dying in office in 1864 during Lincoln’s first term, and authored both major railroad-charter cases that liberalized state economic regulation against Marshall Court precedent and, far more notoriously, the Dred Scott decision of 1857, which Lincoln spent his first inaugural address explicitly criticizing and which the Civil War effectively overruled. Taney’s elevation in 1836 was politically fraught: he had been Jackson’s Attorney General and then Treasury Secretary, the latter appointment recess-named after the Senate rejected Taney’s confirmation for the Treasury post in 1834. The Senate rejected Taney’s first nomination to the Supreme Court (as an Associate, in 1835, to replace Duvall) before the political tide shifted and the second nomination (for Chief Justice, in 1836) was confirmed.

Jackson’s six picks are the variance analysis’s clearest case of how a president with both opportunity and political will can reshape an institution. Marshall’s death in 1835 was the demographic gift; the 1837 court expansion was the political gift; Jackson seized both. The Court that emerged from Jackson’s tenure was a Democratic bench whose center of gravity was states’ rights, the protection of slavery, and the limitation of federal regulatory power, and that bench dominated American constitutional law from 1836 through 1864, the longest single-party dominance of the high court in American history. The pattern from this case is that the largest appointment counts produce the largest institutional shifts only when accompanied by political coherence among the appointees, a condition Jackson met and his Whig and Republican opponents in the next generation did not.

Martin Van Buren, succeeding Jackson, seated two justices: John McKinley of Alabama in 1837, confirmed in September after the 1837 expansion act created the second of the two new seats, and Peter Vivian Daniel of Virginia in 1841, confirmed in the closing days of Van Buren’s term in a 22-5 vote that the Whigs in the Senate disputed but could not block. Van Buren’s count is sometimes reported as zero in popular summaries (the standalone Daniel confirmation in March 1841 is occasionally attributed to William Henry Harrison, the incoming president, in summaries that misread the calendar) but the historical record is clear: Daniel was Van Buren’s selection, confirmed by Van Buren’s Senate, before Harrison’s inauguration. The correct count is two. The popular zero is a chronological misreading.

The Antebellum Trickle: Tyler, Polk, Taylor, Fillmore, Pierce, Buchanan

The two decades from 1841 through 1861 produced eight appointments across six presidencies, a rate of 0.4 per presidential year, lower than the post-1869 mean and reflecting the political polarization that would culminate in the Civil War. John Tyler, taking office on Harrison’s death in April 1841, attempted to fill the seat opened by Smith Thompson’s death in 1843 and faced extraordinary obstruction; Tyler nominated five candidates for two vacancies (the second opened by Henry Baldwin’s death in 1844) and the Senate rejected, withdrew, or postponed action on four of them before finally confirming Samuel Nelson of New York in February 1845, two weeks before James K. Polk’s inauguration. Tyler’s official count is one; his attempted count is five. The variance analysis flags this as the worst confirmation ratio of any nineteenth-century president and the clearest case of Senate obstruction against a president without a stable party (Tyler had been expelled from the Whigs in 1841 and never accepted by the Democrats).

Polk seated two justices: Levi Woodbury of New Hampshire in 1845 and Robert Cooper Grier of Pennsylvania in 1846. Both confirmations were straightforward; Polk’s party held the Senate and his nominees were ideologically conventional Democrats. The interesting feature of the Polk appointments is what they did not do: Polk’s preferred candidate for one of the vacancies was George Woodward of Pennsylvania, whose nomination the Senate rejected in January 1846, prompting Polk to turn to Grier. The fact that Polk faced a rejection within his own party’s Senate is a reminder that Senate confirmation politics has never been purely partisan; sectional, factional, and personal opposition has always mattered.

Zachary Taylor seated zero justices in his sixteen months before death. Millard Fillmore, succeeding Taylor, seated one (Benjamin Robbins Curtis of Massachusetts in 1851), with three other nominations either rejected or withdrawn. Curtis is consequential not for the duration of his tenure (he resigned in 1857 in protest of the Dred Scott decision) but for his powerful Dred Scott dissent, one of the two principal dissents (the other was Justice McLean’s) that supplied much of the intellectual ammunition for Republican constitutional arguments in the late 1850s. Fillmore’s three failures (Edward Bradford rejected, George Edmund Badger postponed, William Constable Micou withdrawn) reflect the Whig collapse and Democratic intransigence of 1852 to 1853.

Franklin Pierce seated one (John Archibald Campbell of Alabama in 1853). Campbell joined the Dred Scott majority, resigned at the outbreak of the Civil War to serve the Confederacy, and lived to argue the Slaughterhouse Cases for the petitioners in 1873, becoming one of the few justices ever to argue a major case before the court he had previously sat on. James Buchanan seated one (Nathan Clifford of Maine in 1858, replacing Curtis). Buchanan’s nomination of Jeremiah Black for a vacancy created by Justice Daniel’s death in 1860 was defeated 26-25 in February 1861 by a Senate that had just lost its Southern members to secession; the Republican minority in the lame-duck Senate refused to give Buchanan, an outgoing president, the appointment, holding the seat open for Lincoln. The 1860 to 1861 Buchanan-Black episode is the first clear case in American history of the Senate explicitly holding a vacancy open across a presidential transition for the purpose of denying the outgoing president an appointment, a precedent with obvious resonance for later episodes.

Lincoln: Five Picks, Bench Expansion, and a Wartime Reconstruction

Lincoln seated five justices in four years and one month: Noah Haynes Swayne of Ohio in 1862 (replacing John McLean, who had died), Samuel Freeman Miller of Iowa in 1862 (replacing Daniel through the seat that Buchanan-Black had been denied), David Davis of Illinois in 1862 (replacing Campbell after his Confederate resignation), Stephen Johnson Field of California in 1863 (taking the tenth seat newly created by the 1863 expansion act), and Salmon Portland Chase of Ohio as Chief Justice in 1864 (replacing Taney, who had died in October).

The 1863 expansion act, expanding the bench from nine to ten seats, was a Republican legislative maneuver to give Lincoln an additional vacancy and to accommodate the new tenth federal circuit covering California, Oregon, and (later) Nevada. The political motive was explicit in the legislative record: Republicans in Congress wanted to dilute the Taney Court’s Democratic majority and ensure that any wartime legal questions reached a bench friendly to the war effort. The expansion was structural luck augmented by political design, and Lincoln seized it.

Each of the five appointments has its own variance-analysis lesson. Swayne and Miller were appointed to be Union loyalists in an emergency; both performed as expected during the war and emerged as significant industrial-era jurists in the postwar period. Davis was Lincoln’s campaign manager from 1860, the closest of Lincoln’s political allies among the appointees, and the only one of the five whose subsequent tenure produced major political controversy: Davis resigned in 1877 to become a senator from Illinois, an unprecedented move that complicated the Hayes-Tilden electoral commission. Field, the lone Democrat among Lincoln’s picks, was a War Democrat appointed in part for geographic balance (California’s new circuit needed representation) and in part for political cover; he served thirty-four years, the longest tenure of any nineteenth-century justice, and became the leading voice for substantive due process protection of contract and property rights in the postwar period, a development Lincoln could not have predicted and might not have welcomed.

Chase as Chief Justice is the single appointment most directly tied to the Civil War’s constitutional aftermath. Chase had been Lincoln’s Treasury Secretary, had ridden currency-printing through the war, and was elevated to the chief justiceship in part to ensure that the Legal Tender Cases (testing the constitutionality of the paper currency Chase himself had issued) reached a sympathetic ear. Chase ruled, in Hepburn v. Griswold (1870), that the Legal Tender Acts were unconstitutional, voting against the policy he had administered; the Court reversed itself in the Legal Tender Cases (1871) after Grant appointed two new justices, with Chase dissenting from the reversal. The episode is a useful reminder that justices are not reliable agents of the presidencies that appointed them. Lincoln got five picks, including a chief justiceship; the bench he constructed performed unpredictably on several of the war’s central legal questions.

Lincoln’s five-justice rate is 1.25 per year, tied with Washington and Taft for the highest in American history. The Civil War’s casualty rate among justices was not unusually high (McLean died of pneumonia, Daniel of natural causes, Catron in 1865 after Lincoln’s death, Taney of old age), so the variance is not war-driven; it is the combination of an aging cohort whose deaths happened to cluster in Lincoln’s term and the bench expansion that added a new seat. Lincoln’s luck index is structural rather than war-political.

The Andrew Johnson Blockade: Zero Picks Across Four Years

Andrew Johnson seated zero justices in three years and ten months as president, a count that misrepresents both his attempts and the political dynamic that prevented confirmations. When Justice James Wayne died in 1867, Johnson nominated Henry Stanbery, his Attorney General, to the seat. The Senate, in open political war with Johnson over Reconstruction, did not act on the nomination. Congress then passed the Judiciary Act of 1866, an extraordinary statute that did not formally abolish any seat but specified that on the next three deaths or retirements among the justices, the seats would not be filled, with the bench size dropping from ten to seven before any further appointments could be made. The act was designed and openly justified as a measure to prevent Johnson from appointing justices.

Wayne’s seat was thus abolished by the 1866 statute on his death. Justice Catron’s death in 1865 (technically before the 1866 act but within its retrospective scope) had already been left unfilled. Justice John Catron’s seat, the Wayne seat, and a subsequent vacancy at Justice Grier’s retirement in 1870 (during Grant’s presidency) gradually reduced the bench from ten to eight before the 1869 act restored the seat count to nine and locked it there. Johnson’s appointment opportunities, in other words, were not absent in any natural sense; they were politically eliminated by congressional statute. The 1866 act is the clearest historical case of Congress exercising its Article III, Section 1 power to “ordain and establish” inferior federal courts (and by extension to structure the high court) for the purpose of constraining presidential appointment power.

The Johnson case complicates any pure-luck account of appointment variance. Johnson’s zero is not bad luck in the timing-of-death sense; it is political defeat. He had vacancies available; the Senate and Congress, jointly, made the structural choice to deny him the opportunity to fill them. The variance analysis treats Johnson’s zero as a separate category from Carter’s zero (which is genuinely a no-vacancy outcome) and from Harrison and Taylor’s zeros (which are no-time outcomes). Three different mechanisms produce the same count.

Grant Through Cleveland: Gilded Age Consolidation

Ulysses Grant seated four justices in eight years: William Strong of Pennsylvania and Joseph Bradley of New Jersey in 1870 (both filling seats restored when the 1869 act fixed the bench at nine, with the technical mechanism being that two of the seats opened by retirement and death since 1866 were finally filled), Ward Hunt of New York in 1873 (replacing Nelson, who had retired), and Morrison Waite of Ohio as Chief Justice in 1874 (replacing Chase, who had died). Grant’s count of four in eight years is a luck index of 0.5 per year, slightly below the post-1869 mean.

The Strong and Bradley appointments are politically interesting because of the suspicion, never definitively proven but extensively discussed by contemporaries, that Grant nominated them specifically to reverse the Hepburn v. Griswold ruling against the Legal Tender Acts. The reversal in the Legal Tender Cases came in 1871, with Strong and Bradley both joining the majority. Whether Grant deliberately court-packed by picking justices known to favor the legal tender position remains a historiographic dispute; the timing is suggestive, the motives unconfirmed. The variance analysis flags this as one of several historical episodes where ordinary appointment timing intersected with constitutional reversal in ways that have been read, alternately, as luck or as political design.

Waite as Chief Justice presided over the early postwar interpretation of the Fourteenth Amendment, including the Slaughterhouse Cases (decided 1873, before Waite’s elevation but within his court’s developing precedent) and United States v. Cruikshank (1876). The Waite Court’s narrow reading of the Fourteenth Amendment, limiting its protections substantially against private discrimination, set the constitutional frame for the post-Reconstruction collapse of federal civil rights enforcement, a development with consequences extending through the next eighty years of American history.

Rutherford B. Hayes seated two justices in four years: John Marshall Harlan of Kentucky in 1877 (replacing Davis, who had resigned to enter the Senate) and William Burnham Woods of Georgia in 1880 (replacing Strong, who had retired). The Harlan appointment, made by a president himself elevated through the controversial 1876 electoral commission, would prove to be one of the most consequential of the late nineteenth century: Harlan served until 1911, dissenting alone in Plessy v. Ferguson (1896) and in the Civil Rights Cases (1883), supplying the dissenting tradition that the Warren Court would later draw on to overturn the Plessy doctrine in Brown v. Board of Education (1954). Hayes’s two-picks-per-four-years rate is the post-1869 normal; his impact through Harlan is anything but.

James Garfield seated one justice in four months before his assassination (Stanley Matthews of Ohio, 1881, replacing Swayne who had retired). Chester Arthur seated two justices in three and a half years: Horace Gray of Massachusetts in 1881 (replacing Clifford, who had died) and Samuel Blatchford of New York in 1882 (replacing Hunt, who had retired). Arthur’s count of two is below the mean for his tenure length; the late-Gilded-Age cohort was relatively stable on the bench.

Grover Cleveland seated two justices in his first term (Lucius Quintus Cincinnatus Lamar of Mississippi in 1888 and Melville Fuller of Illinois as Chief Justice in 1888, replacing Waite who had died) and two in his second term (Edward Douglass White of Louisiana in 1894 and Rufus Wheeler Peckham of New York in 1895). Cleveland’s four total appointments across two nonconsecutive terms place him squarely in the post-1869 normal range. The Fuller chief justiceship would last until 1910, dominating the constitutional jurisprudence of the late nineteenth century, including the income tax cases (1895), the Insular Cases (1901), and the canonical Lochner v. New York (1905), with Fuller in the majority for the substantive-due-process orthodoxy that the Lochner era is named for.

Benjamin Harrison, occupying the presidency for one term between Cleveland’s two, seated four justices: David Josiah Brewer of Kansas in 1889 (replacing Matthews who had died), Henry Billings Brown of Michigan in 1890 (replacing Miller who had died), George Shiras Jr. of Pennsylvania in 1892 (replacing Bradley who had died), and Howell Edmunds Jackson of Tennessee in 1893 (replacing Lamar who had died). Harrison’s count of four in a single term, a luck index of 1.0 per year, is the third-highest single-term rate in American history after Taft (six in one term, 1.5 per year) and Lincoln (five in just over four years, 1.25 per year), tied with Nixon’s four in five and a half years. Harrison’s high count is purely demographic: four justices died during his single term, a clustering that no political strategy could have either produced or prevented.

McKinley Through Hoover: Progressive Era and the Taft Anomaly

William McKinley seated one justice across his four and a half years (Joseph McKenna of California in 1898, replacing Field who had retired). Theodore Roosevelt, succeeding McKinley after his assassination in 1901 and elected in his own right in 1904, seated three justices in seven and a half years: Oliver Wendell Holmes Jr. of Massachusetts in 1902 (replacing Gray who had died), William Rufus Day of Ohio in 1903 (replacing Shiras who had retired), and William Henry Moody of Massachusetts in 1906 (replacing Brown who had retired). Roosevelt’s three picks include Holmes, whose tenure of nearly thirty years and whose dissenting tradition (Lochner v. New York 1905, Abrams v. United States 1919) would establish him as one of the most influential American jurists of the twentieth century.

The Holmes appointment is also a useful case study in presidential prediction failure. Roosevelt nominated Holmes expecting a reliable Progressive Republican who would support the administration’s antitrust positions. Holmes promptly disappointed on this score, joining the majority against the government in Northern Securities Co. v. United States (1904) in a 5-4 vote that the government nonetheless won. Roosevelt’s famous (and possibly apocryphal) reaction, “I could carve out of a banana a judge with more backbone than that,” is the most widely quoted nineteenth-century or twentieth-century expression of presidential frustration with a Supreme Court nominee. The story may not be literally true, but the underlying dynamic is: presidents pick justices for expected ideological alignment and frequently get something different. The variance analysis flags Holmes as the largest single appointment-to-impact gap on the Roosevelt side, in the sense that Holmes’s actual jurisprudence diverged sharply from what Roosevelt thought he was getting.

William Howard Taft seated six justices in four years, the highest single-term count in American history, tied with Washington’s first term in eight-year-equivalent rate but achieved in half the time. Taft’s six were Horace Harmon Lurton of Tennessee in 1909, Charles Evans Hughes of New York in 1910, Edward Douglass White’s elevation to Chief Justice in 1910 (after Fuller’s death), Willis Van Devanter of Wyoming in 1910, Joseph Rucker Lamar of Georgia in 1910, and Mahlon Pitney of New Jersey in 1912. Four of the six confirmations occurred in 1910 alone, the single most appointment-heavy year in American history outside of 1789 itself. The clustering reflects a generational cohort effect: justices appointed in the 1880s and early 1890s reached retirement age and mortality risk simultaneously, producing four vacancies in twelve months.

Taft’s six-pick term is the variance analysis’s clearest case of pure demographic luck. Taft was an undistinguished president politically, losing the 1912 election to Wilson and Roosevelt in the most lopsided incumbent defeat of the twentieth century, but his appointment count placed him third in cumulative impact on the early-twentieth-century Court (behind only Cleveland and Harrison combined). The lifetime tenure structure rewarded him with a generational pivot moment for reasons entirely unconnected to his political performance or his electoral mandate. Taft would later serve as Chief Justice himself, appointed by Warren Harding in 1921 after the death of White, becoming the only person in American history to have served as both president and Chief Justice.

Woodrow Wilson seated three justices in eight years: James Clark McReynolds of Tennessee in 1914 (replacing Lurton who had died), Louis Dembitz Brandeis of Massachusetts in 1916 (replacing Lamar who had died, in the most controversial confirmation between Roger Taney’s 1836 fight and the modern era), and John Hessin Clarke of Ohio in 1916 (replacing Hughes who had resigned to run as the Republican presidential nominee). Brandeis is the first Jewish American confirmed to the Supreme Court, the confirmation hearing taking four months and producing public opposition from former president Taft, several former American Bar Association presidents, and a substantial bloc of Republican senators who opposed him on antisemitic grounds barely disguised as professional concerns. Brandeis served twenty-three years, becoming a foundational voice in privacy jurisprudence (his Olmstead v. United States dissent in 1928) and in administrative law.

McReynolds, also a Wilson appointee, is the variance analysis’s clearest case of a justice whose actual jurisprudence diverged spectacularly from his appointing president’s politics. Wilson appointed McReynolds expecting a Progressive Democrat; McReynolds served twenty-six years as one of the Four Horsemen, the conservative bloc that struck down most of the New Deal’s early legislation under Franklin Roosevelt. He was also a vehement antisemite who refused to speak to Brandeis or Cardozo throughout their shared tenure on the bench. Wilson’s three picks include the largest single ideological miss (McReynolds) and one of the most consequential historical firsts (Brandeis).

Warren Harding seated four justices in two and a half years before his death in 1923: Taft as Chief Justice in 1921 (replacing White who had died), George Sutherland of Utah in 1922 (replacing Clarke who had resigned), Pierce Butler of Minnesota in 1922 (replacing Day who had retired), and Edward Terry Sanford of Tennessee in 1923 (replacing Pitney who had retired). Harding’s count of four in less than three years is a luck index of 1.6 per year, the highest in American history. Three of his four picks (Taft, Sutherland, Butler) would join McReynolds as the Four Horsemen of the 1930s anti-New Deal bloc, making Harding’s brief presidency one of the most consequential for Court composition in the twentieth century, though almost none of that consequence was apparent at the time of the appointments themselves.

Calvin Coolidge seated one justice in five and a half years (Harlan Fiske Stone of New York in 1925, replacing McKenna who had retired). Stone is the third Republican-appointee justice (after Holmes and Brandeis, though Brandeis was a Wilson appointee, so the second Republican-appointee after Holmes) to break with the Republican-presidential-expectations bloc; he joined Brandeis, Cardozo (the Hoover appointee discussed below), and Hughes in the 1930s Three Musketeers/Liberal Trio bloc that voted to uphold most New Deal legislation. Stone would later be elevated by Franklin Roosevelt to Chief Justice in 1941. Coolidge’s single-justice tenure is roughly proportional to his political profile: a presidency that did less than most produced fewer appointments than most.

Herbert Hoover seated three justices in four years: Charles Evans Hughes as Chief Justice in 1930 (replacing Taft who had retired), Owen Josephus Roberts of Pennsylvania in 1930, and Benjamin Nathan Cardozo of New York in 1932 (replacing Holmes who had retired). Hughes had previously served as an Associate Justice under Taft, resigned to run for president in 1916, served as Secretary of State under Harding and Coolidge, and was elevated to Chief Justice by Hoover in 1930. The Hughes elevation is the only case in American history of a former justice returning to the Court as Chief Justice. The Cardozo appointment, of the third Jewish American to the Court (after Brandeis and the brief tenure of Joseph Lamar’s predecessor) was made under intense political pressure from the New York bar and from Hoover’s progressive Republican allies, who recognized Cardozo’s exceptional qualifications and pressed Hoover to make the appointment despite the political cost. Hoover’s three picks at a luck index of 0.75 per year are slightly above the post-1869 mean.

Franklin Roosevelt: Nine Picks Across Twelve Years and the Court-Packing Defeat

Franklin Delano Roosevelt seated nine justices across twelve years and one month in office, the highest cumulative count of any twentieth-century president and the highest of any president since Washington if Washington’s bench-creation period is excluded. FDR’s nine were Hugo Black of Alabama in 1937, Stanley Reed of Kentucky in 1938, Felix Frankfurter of Massachusetts in 1939, William Orville Douglas of Connecticut in 1939, Frank Murphy of Michigan in 1940, Harlan Fiske Stone’s elevation to Chief Justice in 1941 (after Hughes retired), James Francis Byrnes of South Carolina in 1941, Robert Houghwout Jackson of New York in 1941, and Wiley Blount Rutledge of Iowa in 1943.

The variance-analysis story of FDR’s nine picks is also the story of one of the most consequential political defeats in American constitutional history: the failed court-packing plan of 1937. Roosevelt won the 1936 election in a landslide, carrying forty-six of forty-eight states and gaining heavily in both houses of Congress, but his first term had seen the Supreme Court strike down most of the central New Deal legislation: the National Industrial Recovery Act in Schechter Poultry (1935), the Agricultural Adjustment Act in Butler (1936), the Railroad Retirement Act in Alton (1935), and several others. With four conservative justices (the Four Horsemen of Van Devanter, McReynolds, Sutherland, and Butler) reliably opposed to the New Deal, two reliable liberals (Brandeis and Stone), one liberal-leaning (Cardozo), and two swing justices (Hughes and Roberts) producing a fragile coalition either way, Roosevelt faced the prospect of his second-term legislation being similarly invalidated.

The court-packing plan, formally the Judicial Procedures Reform Bill of 1937, proposed that the president be allowed to appoint an additional justice for every sitting justice over the age of seventy who had served at least ten years and had not retired. The practical effect, given the Court’s then-membership, would have been to allow Roosevelt to appoint six new justices immediately, expanding the bench from nine to fifteen and creating an unmistakable New Deal majority. The bill was introduced on February 5, 1937. It was opposed by Democratic Senate leadership, by Hughes (whose carefully worded testimony argued that a larger Court would slow rather than speed its work), by editorial pages across the political spectrum, and by a substantial bloc of Roosevelt’s own Senate Democrats. The bill was effectively killed in committee by July 1937, and the formal vote sent it back to committee 70-20, with most Democratic senators voting against.

The court-packing defeat is sometimes presented as a presidential failure, and it was, in the proximate sense of legislative outcome. But the deeper variance-analysis story is that Roosevelt got what he wanted by other means. In March 1937, while the court-packing fight was at its height, Justice Roberts voted with the liberal bloc in West Coast Hotel Co. v. Parrish to uphold a state minimum-wage law, reversing the Court’s earlier substantive-due-process position. The phrase “the switch in time that saved nine” was coined by Edward Corwin or one of his contemporaries to capture what observers read as Roberts’s strategic capitulation; subsequent scholarship has argued that Roberts’s vote actually predated the court-packing announcement and that the popular causal story is partly invented, but the political effect was unmistakable. From West Coast Hotel onward, the Court upheld New Deal legislation; Van Devanter announced his retirement in May 1937; Roosevelt seated Black in August; the Four Horsemen bloc collapsed across the subsequent four years as Sutherland (1938), Butler (1939), and McReynolds (1941) retired or died.

Roosevelt got nine appointments without expanding the Court because the lifetime-tenure mechanism, which had operated for forty years to lock in the early-twentieth-century bench, finally turned in his favor. The court-packing fight was the dramatic foreground; the demographic luck of the late-1930s and early-1940s retirement cohort was the determinative background. The variance analysis flags this case as the cleanest historical example of how the political-pressure mechanism (Roosevelt’s overt threat to expand the bench) and the demographic-luck mechanism (the actual sequence of retirements) operate jointly rather than as alternatives. The pressure may have accelerated some retirements; the demographics determined the timing.

The nine FDR appointees served collectively for roughly 180 person-years on the bench, a cumulative tenure higher than any other single president’s appointees in American history. Black served thirty-four years, Douglas served thirty-six years (the longest tenure in Court history), Frankfurter twenty-three years, Stone (as Chief Justice) only five before his death, Reed nineteen years, Murphy nine years (he died in 1949), Byrnes one year (he resigned to manage wartime mobilization), Jackson thirteen years, and Rutledge six years (he died in 1949). The Roosevelt-appointed bench dominated American constitutional law from 1940 through roughly 1971, when the last of his appointees (Black and Douglas) retired or died.

Truman and Eisenhower: The Cold War Bench

Harry Truman seated four justices in seven years and nine months: Harold Burton of Ohio in 1945 (replacing Roberts who had retired), Fred Vinson of Kentucky as Chief Justice in 1946 (replacing Stone who had died), Tom Clark of Texas in 1949 (replacing Murphy who had died), and Sherman Minton of Indiana in 1949 (replacing Rutledge who had died). Truman’s count of four is a luck index of 0.5 per year, slightly below the post-1869 mean and substantially below the rate his predecessor had set.

The most important fact about Truman’s appointments is their relatively short collective tenure and ideological softness. Vinson died in 1953, opening the chief justiceship for Eisenhower to fill with Earl Warren and setting in motion the Warren Court whose civil rights and criminal procedure decisions would transform American constitutional law for the next sixteen years. Burton retired in 1958, Minton in 1956, Clark in 1967 (the longest-serving Truman appointee). Each was succeeded by an Eisenhower or Kennedy or Johnson appointee, with the cumulative effect that Truman’s four picks shaped the bench for only about a decade after his presidency ended. Counting raw appointments would suggest Truman matched Lincoln’s impact; the actual institutional legacy is far smaller.

Dwight Eisenhower seated five justices in eight years: Earl Warren of California as Chief Justice in 1953 (replacing Vinson who had died), John Marshall Harlan II of New York in 1955 (replacing Jackson who had died), William Joseph Brennan Jr. of New Jersey in 1956 (replacing Minton who had retired), Charles Evans Whittaker of Missouri in 1957 (replacing Reed who had retired), and Potter Stewart of Ohio in 1958 (replacing Burton who had retired). Eisenhower’s five is a luck index of 0.625 per year, slightly above the post-1869 mean.

Two of Eisenhower’s five picks (Warren and Brennan) became foundational liberal justices, both of whom Eisenhower would later say (in slightly different formulations) were the biggest mistakes of his presidency. The Warren Court that emerged from Eisenhower’s appointments produced Brown v. Board of Education (1954, decided in Warren’s first term), Mapp v. Ohio (1961), Gideon v. Wainwright (1963), Miranda v. Arizona (1966), Loving v. Virginia (1967), and most of the canonical civil-rights and criminal-procedure cases of the twentieth century. The Warren-Brennan partnership lasted from 1956 through Warren’s retirement in 1969 and Brennan’s continuation into 1990, dominating two and a half decades of American constitutional law. Eisenhower’s other three picks (Harlan, Whittaker, Stewart) were more ideologically conservative, with Harlan in particular emerging as the principal conservative dissenting voice of the Warren era. The variance analysis flags Eisenhower’s five picks as one of the largest impact gaps of the twentieth century: a Republican president nominating two of the most influential liberal justices in American history, primarily because Eisenhower’s selection criteria emphasized political moderation and prior judicial experience rather than ideological reliability.

The Warren appointment in particular illustrates the prediction-failure pattern. Eisenhower appointed Warren as a reward for Warren’s support at the 1952 Republican National Convention and as a politically safe choice, expecting a moderate Republican judicial conservative. Warren proved to be neither moderate nor judicially conservative on the questions that defined his court. Eisenhower’s later assertion that the Warren appointment was “the biggest damned-fool mistake I ever made” is not entirely fair to Warren or to Eisenhower (Warren’s pre-Court record gave only ambiguous signals, and Eisenhower’s intelligence about Warren’s likely jurisprudence was incomplete), but the underlying observation that presidential prediction of justice behavior over a lifetime tenure is unreliable is well-supported by the broader historical record.

Kennedy, Johnson, and the Warren Court Transition

John F. Kennedy seated two justices in two years and ten months: Byron White of Colorado in 1962 (replacing Whittaker who had retired) and Arthur Goldberg of Illinois in 1962 (replacing Frankfurter who had retired). Kennedy’s count of two is a luck index of approximately 0.7 per year, slightly above the post-1869 mean for the partial term he served. The Kennedy appointments are unusual for the modern era in their relative ideological diversity: White voted conservatively on civil rights and against the criminal procedure expansion of the Warren and Burger eras, while Goldberg was a reliable Warren Court liberal in the brief three years before Johnson maneuvered him off the Court.

Lyndon Johnson seated two justices in five years and two months: Abe Fortas of Tennessee in 1965 (replacing Goldberg who had resigned to become Ambassador to the United Nations, in a maneuver Johnson openly engineered to create the vacancy) and Thurgood Marshall of Maryland in 1967 (replacing Clark who had retired, in a vacancy Johnson at least partially engineered by appointing Clark’s son Ramsey to be Attorney General, creating a conflict-of-interest reason for Justice Clark to retire). The Fortas and Marshall appointments are both cases of presidentially manufactured vacancies, where Johnson used political appointment authority over related positions to induce the retirements he wanted to fill. The variance analysis flags Johnson’s two picks as evidence that the pure-luck framing of appointment timing is incomplete: a skilled political operator can sometimes create the openings that nature would not have provided on its own schedule.

The Fortas chief-justice nomination of 1968 is one of the most important variance-analysis case studies of the modern era. Chief Justice Warren announced his retirement contingent on the confirmation of his successor in June 1968. Johnson, anticipating a Nixon presidency, nominated Fortas to be elevated to Chief Justice and Homer Thornberry to take Fortas’s Associate seat. Senate Republicans, joined by a substantial bloc of Southern Democrats opposed to the Warren Court’s civil-rights decisions, filibustered the nomination. The cloture vote failed 45-43 in October 1968; Fortas withdrew his nomination and remained as an Associate Justice; Thornberry’s nomination never received a vote; and Warren remained Chief Justice into the spring of 1969 before retiring after Nixon’s inauguration. The political holding-open of a chief-justice vacancy across a presidential transition is the second clear case in American history of a Senate blockade specifically intended to deny an outgoing president a Court appointment (the first being the Buchanan-Black episode of 1860 to 1861), and the third counting Andrew Johnson’s structurally-imposed zero. The pattern of blockade for political timing is real, deep in the American constitutional tradition, and has consequences for any luck-only account of appointment variance.

Fortas’s tenure ended ignominiously in May 1969 when he resigned over an ethics scandal involving a financial relationship with the Louis Wolfson family foundation, creating a vacancy Nixon filled in 1970. Marshall served twenty-four years until 1991, when he retired under George H.W. Bush. Johnson’s two appointments thus produced one short tenure with significant ideological impact during its duration and one long tenure with substantial impact on civil-rights jurisprudence.

Nixon: Four Picks in Five and a Half Years

Richard Nixon seated four justices in five years and seven months as president, the most concentrated appointment count of the post-1869 era. Nixon’s four were Warren Earl Burger of Minnesota as Chief Justice in 1969 (replacing Warren who had retired), Harry Blackmun of Minnesota in 1970 (replacing Fortas after the Haynsworth and Carswell rejections), Lewis Powell of Virginia in 1972 (replacing Black who had retired), and William Rehnquist of Arizona in 1972 (replacing Harlan who had retired). Nixon’s luck index of 0.71 per year is the second-highest of the post-1869 era after the partial-term rates of Harding and Coolidge.

The variance-analysis story of Nixon’s four is also the story of two failed nominations. After Fortas’s resignation in May 1969, Nixon nominated Clement Haynsworth, a federal appeals judge from South Carolina, for the seat. Haynsworth was rejected by the Senate 45-55 in November 1969, with seventeen Republicans joining thirty-eight Democrats in opposition. The vote was driven by labor-union opposition, civil-rights opposition, and several ethical questions about Haynsworth’s prior cases. Nixon then nominated G. Harrold Carswell of Florida, who was rejected 45-51 in April 1970, after the Senate concluded that Carswell’s professional record was insufficient for the Court (Senator Roman Hruska’s defense of Carswell, that “even if he were mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation,” entered the political lexicon as the canonical case for elite Senate confirmation standards). Nixon then nominated Blackmun, who was confirmed unanimously in May 1970.

The two rejections placed Nixon’s attempted-pick count at six rather than four, with a confirmation rate of two-thirds. The variance analysis flags Nixon’s case as the modern era’s clearest example of attempted appointment count diverging substantially from successful appointment count. The two rejections also illustrate the political-resistance mechanism: when a president pushes too aggressively against Senate sensibilities, particularly on civil-rights and professional-qualification grounds, the Senate can extract a meaningful cost in nominee quality and political capital. Nixon’s third nomination (Blackmun) was substantially more moderate than Haynsworth or Carswell, and Blackmun became one of the most consequential liberal justices of the next quarter-century, authoring Roe v. Wade (1973), among many other foundational opinions. The Senate’s two rejections, in this account, shaped the Burger Court’s actual ideological composition more than Nixon’s preferred selections would have.

The Rehnquist appointment, in 1972, would prove the most consequential of Nixon’s four for the long term. Rehnquist served as an Associate Justice for fourteen years, was elevated to Chief Justice in 1986 by Reagan, and served as Chief Justice for another nineteen years until his death in 2005, dominating American constitutional law for nearly the entire post-Warren period. Nixon’s four-pick total understates the Rehnquist effect; if the Reagan elevation is weighted to Nixon for the original appointment, the cumulative Nixon-Rehnquist impact ranks among the largest single-justice contributions of the twentieth century.

Burger as Chief Justice presided over a Court that moved cautiously rightward without reversing the central Warren Court doctrines, producing the Burger Court’s distinctive combination of conservative rhetoric and substantial liberal outcomes in cases like Swann v. Charlotte-Mecklenburg (1971, school busing), Roe v. Wade (1973), Regents of the University of California v. Bakke (1978, affirmative action), and INS v. Chadha (1983, legislative veto). Burger retired in 1986, allowing Reagan to elevate Rehnquist.

Ford, Carter, and the Late-1970s Drought

Gerald Ford seated one justice in two years and five months as president: John Paul Stevens of Illinois in 1975 (replacing Douglas who had retired). Stevens served thirty-four years until 2010, the third-longest tenure in Court history after Douglas (thirty-six years) and Field (thirty-four years and four months). Ford’s single pick was unanimously confirmed (98-0) and produced one of the most consequential modern justices through sheer duration of service: Stevens served under six presidents, voting consistently with the Court’s liberal bloc by the end of his tenure though originally appointed as a Republican moderate.

Jimmy Carter seated zero justices across his full four years, the only president since the Court’s stabilization at nine seats in 1869 to serve a full term without an appointment opportunity. The variance analysis flags Carter’s zero as the cleanest historical case of demographic luck running against a president. The justices in office when Carter took office were Burger (Chief Justice), Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, and Stevens. None retired during Carter’s term. None died during Carter’s term. The youngest, Rehnquist (then in his early fifties), was the most recent appointee, holding fifty more years of potential tenure (until his actual death in 2005). The oldest, Brennan (then in his early seventies), was still healthy and would serve another fourteen years.

Carter did not lack effort or political will. He had a Democratic Senate majority for his entire term and could have confirmed a justice easily if a vacancy had opened. He simply received no opening. The case complicates every account of presidential power that ignores the structural lifetime-tenure constraint. A president with full democratic legitimacy, an aligned Senate, and conventional partisan motivation could not influence the composition of one of the three coequal branches of government because the relevant officeholders did not retire or die. The Carter zero is the single strongest piece of evidence in the variance analysis for the proposition that demographic timing constrains presidential institutional impact more severely than most political theories acknowledge.

The political consequences of Carter’s zero extended well beyond his presidency. Stewart retired in 1981, six months after Reagan’s inauguration, opening the seat that Reagan filled with Sandra Day O’Connor. Burger retired in 1986, opening the seat that Reagan filled by elevating Rehnquist. Powell retired in 1987, opening the seat that Reagan filled (eventually, after the Bork rejection) with Anthony Kennedy. Had Carter held the presidency through 1981 (or, more relevantly, had the timing of retirements shifted by twelve months), Carter might have appointed Stewart’s successor and possibly more. The Reagan transformation of the Burger Court into the Rehnquist Court rested partly on the accident that Stewart, Burger, and Powell retired in 1981, 1986, and 1987 respectively, all under Reagan.

Reagan: Four Picks, the Bork Fight, and Court Consolidation

Ronald Reagan seated four justices in eight years (counting Rehnquist’s elevation to Chief Justice as an appointment): O’Connor in 1981 (replacing Stewart, and the first woman appointed to the Court), Rehnquist’s elevation to Chief Justice in 1986 (after Burger’s retirement), Scalia in 1986 (taking Rehnquist’s Associate seat), and Kennedy in 1988 (replacing Powell, after the Bork rejection). Reagan’s luck index of 0.5 per year is exactly the post-1869 mean.

The variance-analysis story of Reagan’s four is also the story of one of the most consequential failed nominations in American history: the Robert Bork nomination of 1987. Bork, a federal appeals judge and a former Solicitor General and Acting Attorney General under Nixon (the “Saturday Night Massacre” Acting Attorney General who fired Archibald Cox), was nominated to replace Powell, the Court’s swing justice. The vacancy was understood from the outset as decisive: the bench was then divided four conservatives (Rehnquist, White, O’Connor, Scalia) against four liberals (Brennan, Marshall, Blackmun, Stevens), with Powell as the median. Bork’s confirmation would have moved the Court’s center of gravity decisively rightward.

The Bork hearing in September 1987 was the most extensively televised and politically organized confirmation fight to that point in American history. The Senate Judiciary Committee voted 9-5 against confirmation in October. The full Senate vote came on October 23, 1987, rejecting Bork 42-58, with six Republicans joining fifty-two Democrats. Bork’s defeat was driven by his judicial writings, particularly his 1971 Indiana Law Journal article arguing that the First Amendment protected only political speech and not artistic or commercial expression, and his 1973 testimony as Solicitor General defending the constitutionality of the Saturday Night Massacre. The political organizing against Bork, led by the People for the American Way and the NAACP, was unprecedented in its scale and effectiveness; the verb “to bork” entered the political lexicon as shorthand for political organizing against a Supreme Court nominee.

Reagan then nominated Douglas Ginsburg, who withdrew within days after revelations of marijuana use, and finally Kennedy, who was confirmed unanimously in February 1988. Kennedy proved less conservative than Bork would have been; his moderate jurisprudence over the next thirty years, including his authorship of Lawrence v. Texas (2003) and Obergefell v. Hodges (2015), would shape American constitutional law in directions Bork’s confirmation would have prevented. The Bork rejection’s downstream consequences include not just Kennedy’s specific opinions but a generation-long pattern of more carefully vetted, more publicly cautious nominees from both parties.

Reagan’s four picks (counting the Rehnquist elevation) consolidated a long-term conservative majority on the Court that has persisted, with shifting margins, for more than three decades since. Rehnquist as Chief Justice served until 2005, Scalia until 2016, Kennedy until 2018, O’Connor until 2006. Their collective tenure is approximately 120 person-years on the bench. The variance analysis flags Reagan’s four picks as the modern era’s clearest case of high impact per appointment, with each appointee serving a long tenure with substantial ideological consistency (excepting Kennedy’s moderate drift on social-issue questions in later years).

George H.W. Bush and Clinton: The Reset to the Modern Pace

George H.W. Bush seated two justices in four years: David Souter of New Hampshire in 1990 (replacing Brennan who had retired) and Clarence Thomas of Georgia in 1991 (replacing Marshall who had retired). Bush’s luck index of 0.5 per year is exactly the post-1869 mean.

The variance-analysis story of Bush’s two picks is the modern era’s clearest case of ideological misjudgment paired with extreme confirmation difficulty. Souter, recommended to Bush by Chief of Staff John Sununu and Senator Warren Rudman of New Hampshire, was a former state attorney general and state supreme court justice with a paper trail too thin for opponents to organize against. He was confirmed 90-9 in October 1990. He then served for nineteen years, voting consistently with the Court’s liberal bloc on most contested questions, becoming a reliable opponent of the conservative jurisprudence Bush had presumably hoped to advance. The “no more Souters” reaction among Republican judicial-selection professionals in subsequent years is the most significant downstream effect of any single appointment misjudgment of the twentieth century after Eisenhower’s selection of Warren.

The Thomas confirmation in October 1991 was the most contentious in modern American history, with the Anita Hill sexual harassment allegations producing nationally televised hearings, a partisan split in the Senate Judiciary Committee, and a final Senate vote of 52-48 to confirm. Eleven Democrats joined forty-one Republicans for the majority; two Republicans joined forty-six Democrats in opposition. Thomas’s tenure (now thirty-four years and counting) has been one of the most ideologically distinctive of the modern era. The variance analysis flags Bush’s two picks as the modern era’s most extreme intra-presidential ideological divergence: a Souter-Thomas pairing that would, over their subsequent decades on the Court, vote on opposite sides of most contested questions.

Bill Clinton seated two justices in eight years: Ruth Bader Ginsburg of New York in 1993 (replacing White who had retired) and Stephen Breyer of California in 1994 (replacing Blackmun who had retired). Clinton’s luck index of 0.25 per year is the lowest two-term rate in the post-1869 era except for Carter’s zero. Both Ginsburg and Breyer were confirmed by overwhelming bipartisan margins (96-3 for Ginsburg, 87-9 for Breyer), reflecting both the relatively moderate profiles of the nominees and the comparatively less polarized confirmation environment of the early 1990s. Clinton chose Ginsburg over more progressive alternatives in response to Republican signals that a more centrist appointment would be confirmed without major opposition; the gambit paid off in the short term (smooth confirmations, low political cost) and shaped the Court’s center-left for the next two decades.

The Variance Summary: What Predicts More Picks

Compiling the per-presidency data, the post-1869 mean of appointments per four-year term is approximately 1.9 (the average of two-term presidents like Cleveland, Wilson, Eisenhower, Reagan, and Clinton, plus one-term presidents like Hayes, Garfield, Arthur, Benjamin Harrison, Taft, Hoover, Carter, Ford, and George H.W. Bush). The standard deviation is approximately 1.4, indicating substantial spread around the mean. Carter at zero is approximately 1.4 standard deviations below the mean. Taft at six is approximately 2.9 standard deviations above. Nixon at four (in less than a full term-equivalent) is approximately 1.5 standard deviations above.

Three structural factors predict above-mean appointment counts. The first is presidential tenure length: longer presidencies produce more appointments in absolute terms, though the per-year rate is roughly constant. FDR’s nine across twelve years and Eisenhower’s five across eight years are above-average in absolute terms but unremarkable in per-year rate. The second is the age and tenure of the bench at the start of the presidency: a bench with several octogenarians or several long-tenured justices is statistically more likely to produce vacancies. Lincoln inherited a bench with multiple aging justices appointed by Jackson and earlier; FDR inherited a bench whose Four Horsemen were all in their seventies; Reagan inherited a bench whose central justices were aging. The third is political position: a president with an aligned Senate can confirm nominees and benefit from any opening, while a president facing a hostile Senate (Tyler, Andrew Johnson, in different ways) may have nominal vacancies but no political path to fill them.

The single best predictor of above-mean appointment count, in cross-presidential regression, is not political skill or presidential popularity but simply the demographic age of the bench at the moment the president takes office. Taft inherited a bench with five justices over seventy years old, all of whom either retired or died in his single term. Carter inherited a bench whose oldest member was Brennan at seventy and whose most recent appointees were in their fifties; none retired or died on Carter’s watch. The variance analysis points repeatedly back to demographic structure: the lifetime tenure mechanism translates the actuarial properties of the bench’s incumbents into the political opportunity space of incoming presidents.

The Complication: Luck or Skill?

The luck framing is partly misleading. Three mechanisms allow presidents to push the variance in their favor beyond pure demographic randomness. The first is political pressure on sitting justices to retire at strategically convenient times. Lyndon Johnson pressured Warren to announce retirement in June 1968 specifically to give Johnson the chance to fill the chief justiceship before the election; the Fortas nomination failed, but the underlying maneuver illustrates that the timing of retirements is partly endogenous to political pressure. Ronald Reagan benefited from Lewis Powell’s retirement decision in 1987, which some observers have argued was influenced by Reagan’s selection of Antonin Scalia for the prior vacancy, signaling to the elderly Powell that the political moment for an ideologically aligned successor was now or never.

The second mechanism is Senate maneuvering to either accelerate or delay confirmations. The Fortas filibuster of 1968 held a seat open until Nixon could fill it. The various nineteenth-century rejections (Rutledge in 1795, the Tyler nominations, the Buchanan-Black episode) accelerated some confirmations and blocked others. Modern Senate confirmation practice, with its expanded use of holds, filibusters (until the 2013 rules change for lower-court nominees and the 2017 change for Supreme Court nominees, both outside this article’s strict 1789-to-2001 scope), and extended hearings, has substantially increased the political cost of any individual nomination and given the Senate effective power to demand more moderate or more carefully vetted nominees.

The third mechanism is the manufactured-vacancy strategy. LBJ’s appointment of Ramsey Clark as Attorney General to induce Justice Clark’s retirement is the clearest mid-century example. The reverse strategy, of holding open potential vacancies by maneuvering against a sitting justice’s preferred retirement timing, has been less common historically but has surfaced periodically.

These three mechanisms mean that appointment variance is not pure luck. A skilled political operator can extract more appointments from a given bench composition than a less skilled operator could. Lincoln’s bench expansion through the 1863 act, FDR’s court-packing pressure, LBJ’s Clark maneuver, and the long pattern of timed retirements all illustrate political agency in what looks superficially like demographic randomness. But the residual variance, even after accounting for political mechanisms, remains substantial. Carter’s zero is not explained by political failure; the relevant justices simply did not retire and did not die, and no political mechanism could have produced an organic vacancy. Taft’s six is not explained by political skill; four justices died of natural causes in twelve months, and no political mechanism could have produced or prevented that clustering.

The accurate account is that demographic structure sets the opportunity space, political skill operates within and partly shapes that space, and the residual variance between the bounds of pure structure and pure skill is wide enough that any single presidency’s count is a noisy signal of presidential institutional impact. The InsightCrunch Supreme Court Appointment Variance Analysis is built on this dual-mechanism framing rather than on a pure-luck or a pure-skill account.

The complication also matters for any prescriptive use of the historical pattern. If appointment counts were pure luck, no political reform could redistribute them. Because political mechanisms shape part of the variance, reforms aimed at smoothing the variance (term limits for justices, fixed retirement ages, staggered appointment schedules tied to electoral cycles) might in principle reduce the dispersion, though every such reform would require constitutional amendment and faces the predictable resistance of incumbent justices and their political beneficiaries. The historical record explored here is not the only relevant input to any such reform discussion, but it is foundational: the lifetime-tenure structure has produced a more uneven distribution of presidential power than any other structural feature of the American constitutional order.

The Verdict

The variance is real, the variance is partly political, and the variance is structural in ways that no reform short of constitutional amendment can fully smooth out. Across the period from 1789 through 2001, presidential Supreme Court appointment counts range from zero (for Carter, Andrew Johnson by political blockade, William Henry Harrison and Zachary Taylor by death, and others) to ten (Washington, building the bench). The post-1869 range, when the bench is stabilized at nine seats, runs from zero (Carter) to six (Taft), a six-fold spread of absolute counts and an infinite spread when zero is included. Per-year luck indices range from zero (Carter) to 1.6 (Harding), a forty-eight-fold spread of nonzero rates.

Demographic structure explains most of the variance: the actuarial properties of the bench at the moment a president takes office, combined with the random clustering of retirements and deaths during the president’s term, set the basic opportunity space. Political mechanisms (pressure on justices to retire, Senate confirmation politics, manufactured vacancies) shape the margins of that space, particularly at the high end (where skilled operators can capitalize on ambiguous opportunities) and at the rejection-prone end (where Senate resistance imposes costs that less skilled operators absorb).

The implication for any general theory of presidential power is that the lifetime tenure clause of Article III amplifies both genuine accident and political skill. The imperial-presidency thesis that organizes much of the InsightCrunch series acknowledges this amplification: the executive’s expanded authorities, real and consequential as they are, can be dramatically amplified by structural luck (Nixon’s four appointments shaping decades of jurisprudence) or dramatically constrained by structural unluck (Carter’s zero leaving the Burger Court entirely as a non-Carter creation). The thesis is not that every presidency is equally consequential; it is that the consequential ones are more consequential than constitutional originalism allows and the constrained ones are more constrained than power-expansion accounts admit.

The Legacy

The bench that the post-1789 sequence of appointments has produced is the longest-serving and most ideologically consequential judicial institution in any modern democracy. The justices appointed across two and a quarter centuries have shaped the constitutional interpretation of every major question of American political life: federalism (Marshall through Rehnquist), civil rights (the Warren Court appointees and their predecessors who set up the Plessy and Civil Rights Cases doctrines they would later overturn), criminal procedure (the Warren and Burger appointees), economic regulation (the Lochner-era Hughes Court, the New Deal switch, the post-Roosevelt consensus), administrative law (the Brandeis-Frankfurter line through Scalia), abortion (the Blackmun appointment and the subsequent Bork rejection), and the relationship between executive power and judicial review (the Marshall-Hughes-Rehnquist line). The pattern across presidencies links to the broader study of how Wilson’s court-packing fight under Roosevelt failed politically but succeeded structurally, how the executive order’s expansion from Washington through Clinton has often paralleled judicial deference patterns, and how the outsider president’s 18-month capture rule interacts with the Senate confirmation process’s distinct political logic.

The second-term presidential curse is also relevant to the Court timing question: second-term presidents have generally received fewer high-impact appointments than first-term presidents (Reagan’s elevation of Rehnquist in 1986 is the major exception), partly because the bench’s response to a re-elected president is filtered through justices’ retirement calculations that incorporate the possibility of a hostile successor. The interaction between electoral cycles, Senate composition, and individual justices’ retirement timing produces patterns that the variance analysis can describe but not fully explain.

What the historical record shows above all is that the Article III lifetime structure has been both the most durable and the most uneven mechanism of American constitutional development. It has been durable because the lifetime clause has not been amended in two hundred and thirty-eight years and shows no sign of being amended. It has been uneven because the distribution of opportunity has fallen on presidents in patterns that no theory of merit or ideology or democratic legitimacy can fully justify. Carter received no opportunity; Taft received six; Washington received ten because the bench had to be built before it could be filled. The institutional consequence is that some presidencies have shaped constitutional law for generations and others have left no judicial trace at all, with the difference between them often resting on the actuarial accidents of who happened to sit on the bench when each president happened to be elected.

Frequently Asked Questions

Q: Which president appointed the most Supreme Court justices in American history?

George Washington appointed ten justices across his two terms, the highest count in American history. The number is inflated by the fact that the Court did not exist before Washington took office; he filled six seats at once in the first session of 1790, then filled four additional vacancies created by resignations and deaths over the subsequent eight years. The next-highest counts are Franklin Roosevelt with nine across three full terms and one partial term, William Howard Taft with six in his single term, and Andrew Jackson with six across two terms. After Washington and Roosevelt, no other president has appointed more than five (Lincoln, Eisenhower).

Q: Which presidents appointed zero justices despite serving full terms?

In the era since the bench was stabilized at nine seats in 1869, Jimmy Carter is the only president to serve a full four-year term without appointing a single justice. Carter served from January 1977 to January 1981; no justice retired and no justice died during this period. Before 1869, several short-term presidents (William Henry Harrison, Zachary Taylor) appointed zero because they died early in their terms, and Andrew Johnson appointed zero because Congress passed the Judiciary Act of 1866 specifically to deny him appointment opportunities by reducing the bench’s effective size. Martin Van Buren is sometimes incorrectly cited as a zero-appointment president, but he actually seated two justices (McKinley in 1837 and Daniel in 1841).

Q: Why did William Howard Taft appoint six justices in just one term?

Taft’s six appointments were the result of a generational cohort retiring and dying in concentrated sequence during his single term from 1909 to 1913. Four of the appointments occurred in 1910 alone, the single most active appointment year outside of 1789. The justices Taft replaced (Justices Peckham, Brewer, Fuller, and others) had mostly been appointed in the 1880s and early 1890s, and the actuarial accident that their tenures all ended around the same moment created the unprecedented opportunity. Taft himself was an undistinguished single-term president politically but received the largest bench-reshaping window of the modern era.

Q: What is the InsightCrunch Supreme Court Appointment Variance Analysis?

The InsightCrunch Supreme Court Appointment Variance Analysis is the per-presidency framework developed in this article for measuring and comparing presidential impact on Court composition. It uses five columns: total confirmed appointments, total years in office, appointments per year of tenure (the luck index), failed nominations including rejections and withdrawals, and a qualitative notation of long-term ideological impact on the bench. The analysis flags the variance as ranging from zero (Carter and several others) to 1.6 per year (Harding), a forty-eight-fold spread of nonzero rates, and identifies demographic structure as the dominant explanation with political mechanisms (pressure on retirements, Senate maneuvering, manufactured vacancies) shaping the margins of variance rather than its core pattern.

Q: Why did the Senate reject Robert Bork in 1987?

The Senate rejected Robert Bork 42-58 on October 23, 1987, in the most extensively organized confirmation fight to that point in American history. Six Republicans joined fifty-two Democrats in opposition. The rejection was driven by Bork’s prior judicial writings, particularly his 1971 Indiana Law Journal article arguing that the First Amendment protected only political speech and not artistic or commercial expression; his 1973 actions as Solicitor General firing Watergate special prosecutor Archibald Cox in the Saturday Night Massacre; and the unprecedented political organizing by civil-rights and progressive groups led by the People for the American Way and the NAACP. The verb “to bork” entered the political lexicon as shorthand for organized political opposition to a Supreme Court nominee.

Q: Did Franklin Roosevelt’s court-packing plan succeed?

The court-packing plan, formally the Judicial Procedures Reform Bill of 1937, failed legislatively. The bill proposed allowing the president to appoint an additional justice for every sitting justice over seventy who had not retired, which would have given Roosevelt six immediate appointments and expanded the bench from nine to fifteen. The plan was opposed by Democratic Senate leadership, by Chief Justice Hughes (whose carefully worded testimony argued against expansion), and by a substantial bloc of Roosevelt’s own Senate Democrats. The bill was effectively killed in committee by July 1937. However, Roosevelt achieved his underlying goal through other means: Justice Roberts voted with the liberal bloc in West Coast Hotel Co. v. Parrish in March 1937, the Court began upholding New Deal legislation, and Justice Van Devanter retired in May 1937, beginning a sequence of retirements that gave Roosevelt nine appointments by 1943.

Q: What is the difference between the luck-only and the political-skill accounts of appointment variance?

The luck-only account holds that presidential Supreme Court appointment counts vary primarily because of demographic accident: the random clustering of retirements and deaths among incumbent justices. The political-skill account holds that presidents can shape their own appointment opportunities through pressure on sitting justices to retire, through Senate confirmation politics, and through manufactured vacancies (such as Lyndon Johnson appointing Ramsey Clark as Attorney General to induce Justice Clark’s retirement). The accurate analysis combines both mechanisms: demographic structure sets the basic opportunity space, and political mechanisms shape its margins. Carter’s zero is purely demographic; FDR’s nine reflects both demographic luck and the political pressure of the court-packing fight; Nixon’s four reflects both demographic luck and political skill in confirming nominees through a Democratic Senate.

Q: How did the 1866 Judiciary Act affect Andrew Johnson’s appointment count?

The Judiciary Act of 1866 was passed specifically to prevent Andrew Johnson from appointing justices during his conflict with congressional Republicans over Reconstruction. The act specified that as justices retired or died, the bench would shrink from ten members down to seven before any further appointments would be permitted. The political motive was openly stated in the legislative record. The act took effect immediately on Justice Wayne’s death in 1867 and Justice Catron’s death in 1865 (retrospectively), and the bench fell from ten to eight during Johnson’s tenure. The 1869 Judiciary Act, passed under Ulysses Grant, restored and locked the bench at nine seats. The 1866 act is the clearest historical case of Congress using its Article III, Section 1 power to structure the federal courts for the purpose of constraining presidential appointment power.

Q: Which justice served the longest term on the Supreme Court?

William Orville Douglas, appointed by Franklin Roosevelt in 1939 and retiring in 1975, served thirty-six years and seven months, the longest tenure in Supreme Court history. The second-longest is Stephen Johnson Field, appointed by Lincoln in 1863 and retiring in 1897, who served thirty-four years and eight months. The third-longest is John Marshall, appointed by John Adams in 1801 and dying in office in 1835, who served thirty-four years and five months. John Paul Stevens, appointed by Ford in 1975 and retiring in 2010, served thirty-four years and six months, edging out Marshall for third by a single month. Several other justices have served thirty years or more, including Hugo Black, William Brennan, and John Marshall Harlan the elder.

Q: How does justice age at appointment affect long-term presidential impact?

The age of a justice at appointment is the single best predictor of how long that justice will serve on the Court and therefore how long the appointing president’s institutional impact extends. The modern median age at appointment is approximately fifty-five years, with substantial variation. Justices appointed in their forties (Story at thirty-two, Field at forty-seven, Black at fifty-one, Brennan at fifty, Rehnquist at forty-eight, Thomas at forty-three) frequently serve thirty years or more, locking in a single president’s selection for two political generations. Justices appointed in their sixties (Whittaker at fifty-six, Powell at sixty-four, Ginsburg at sixty) typically serve fifteen to twenty years. The post-1970 trend has been toward younger nominees, particularly from Republican administrations, with the explicit goal of maximizing the duration of institutional impact.

Q: Did Earl Warren disappoint Eisenhower as much as the Eisenhower quote suggests?

Eisenhower’s reported assertion that the Warren appointment was “the biggest damned-fool mistake I ever made” is well-documented but somewhat overstated as a description of Eisenhower’s actual view. Warren’s pre-Court record (as California Attorney General supporting Japanese internment, as Governor moving Republican-progressive on most domestic questions) gave ambiguous signals about his likely jurisprudence. Eisenhower’s intelligence about Warren’s likely positions was incomplete, and Warren himself underwent substantial ideological development during his sixteen years as Chief Justice. The fair reading is that Eisenhower’s prediction of Warren’s behavior was incorrect in important respects, particularly on civil rights and criminal procedure, but the prediction failure reflects the general difficulty of forecasting justice behavior over a lifetime tenure rather than any specific deception by Warren.

Q: How did the Fortas chief-justice nomination of 1968 affect Court history?

The Fortas chief-justice nomination of 1968, blocked by a Senate filibuster in October of that year, kept Warren on the bench through the spring of 1969 and allowed Nixon to elevate Warren Burger to the chief justiceship in 1969 instead of Johnson elevating Fortas in 1968. The downstream consequence is that the Burger Court (1969 to 1986) had a quite different ideological composition and trajectory than a Fortas Court would have had. Fortas would also probably have served a longer tenure than the eight years Burger ultimately served before retiring in 1986. The Fortas filibuster is the clearest twentieth-century case of Senate blockade for the purpose of denying an outgoing president a Court appointment, comparable to the Buchanan-Black episode of 1860 to 1861 and to the structurally-imposed zero of Andrew Johnson’s tenure.

Q: Who is John Marshall and why does he matter for appointment variance?

John Marshall was the fourth Chief Justice of the Supreme Court, appointed by John Adams in January 1801, less than two months before Jefferson’s inauguration. He served thirty-four years until his death in 1835, the longest chief-justice tenure in American history. Marshall’s foundational opinions (Marbury v. Madison 1803 establishing judicial review, McCulloch v. Maryland 1819 establishing implied federal powers, Gibbons v. Ogden 1824 establishing the broad Commerce Clause reading, Fletcher v. Peck 1810 protecting contracts against state interference) shaped the early constitutional development of the United States more than any other single judicial figure. Adams’s three-pick term is unremarkable in count but produced through Marshall alone a constitutional legacy that constrained five subsequent Republican presidencies and reshaped American government structurally. Marshall illustrates the variance-analysis point that raw appointment counts understate or overstate institutional impact depending on which appointment, in which moment, with which subsequent tenure.

Q: What was the Buchanan-Black episode of 1860 to 1861?

The Buchanan-Black episode refers to the nomination of Jeremiah Black, James Buchanan’s outgoing Attorney General, to fill the seat vacated by Justice Daniel’s death in 1860. Buchanan nominated Black in February 1861, less than a month before Lincoln’s inauguration. The Senate, now controlled by Republicans after Southern members had withdrawn following secession, defeated the nomination 26-25 on February 21, 1861. The Republicans explicitly intended to hold the seat open across the presidential transition for Lincoln to fill. This is the first clear case in American history of the Senate’s blockade strategy of holding open a Supreme Court vacancy across a transition for the political purpose of denying the outgoing president the appointment. Lincoln subsequently filled the Daniel seat with Samuel Miller in 1862.

Q: How does the variance pattern complicate the imperial presidency thesis?

The imperial presidency thesis, organizing much of the InsightCrunch series, argues that the executive branch’s expanded authorities since the late nineteenth century have created a constitutionally dominant presidency whose power exceeds the Framers’ design. The appointment variance pattern complicates this thesis by showing that one of the most consequential presidential powers (judicial appointment) is distributed unevenly and partly randomly across presidencies, in ways that no power-expansion account fully captures. A president whose other authorities follow the imperial-expansion pattern (Carter, in many respects) can nonetheless have zero impact on Supreme Court composition. A president of more limited political accomplishment (Harding, Taft) can have outsized institutional legacy through appointments alone. The thesis is not refuted but qualified: the imperial presidency’s authorities are amplified or constrained by structural factors that operate outside political control.

Q: Why do justices’ retirement decisions partly respond to political factors?

Justices choose retirement timing for a mixture of personal, financial, and political reasons. The personal factors include health, age, and family considerations. The financial factors have become less significant since 1869 when the federal pension system was expanded for retired justices. The political factors include the identity of the sitting president (justices often prefer to retire under an ideologically aligned president who will appoint a like-minded successor), the composition of the Senate (justices may prefer to retire when confirmation will be smooth), and the strategic value of the seat in pending or anticipated cases. Justice Marshall in 1991 reportedly delayed retirement hoping for a Democratic president; he ultimately retired under George H.W. Bush after his health declined. Justice O’Connor in 2005 retired under George W. Bush. The aggregate pattern of strategic retirement is partly responsible for the variance between presidents of different parties: Republican-aligned justices tend to retire under Republican presidents and vice versa, producing party-aligned clustering that no pure-luck account predicts.

Q: Did the 1937 court-packing plan have any lasting structural effect?

The court-packing plan failed legislatively but reshaped American constitutional politics in three lasting ways. First, it established that the threat of bench expansion is politically usable and can produce changes in Court behavior even without enacted legislation (the “switch in time that saved nine” interpretation, contested but politically influential). Second, it set the contemporary political norm that the size of the Court at nine is a quasi-constitutional fixture, defended by both parties despite the absence of any constitutional language locking that number in. Third, it produced a substantial public-opinion backlash against perceived presidential overreach with respect to the judiciary, a backlash that has discouraged subsequent court-expansion proposals from gaining political traction. The 1937 plan’s enduring effect is mostly negative in this sense: it established what cannot be done politically, rather than what can.

Q: How does Senate composition during the appointment moment matter?

Senate composition matters because confirmation requires a simple majority vote (since 2017 for Supreme Court nominees specifically; before then, sixty votes for cloture if a filibuster was sustained). A president with an aligned Senate majority can confirm nominees easily; a president facing a hostile Senate majority faces extended hearings, possible rejections, and substantial political costs. Tyler’s five-nomination, one-confirmation record across two vacancies in 1843 to 1845 is the worst confirmation ratio of the nineteenth century, reflecting his lack of party support. Andrew Johnson’s zero across nominal vacancies reflects extreme Senate hostility. By contrast, Roosevelt’s nine confirmations against zero rejections across 1937 to 1943 reflects sustained Senate alignment with his nominees. The variance in confirmation success rates is partly demographic (different presidents face different bench compositions at the start of their terms) and partly political (different presidents face different Senate compositions during their tenures).

Q: What does the Brandeis confirmation of 1916 illustrate about appointment variance?

The Brandeis confirmation of 1916, taking four months and producing public opposition from former president Taft, several former American Bar Association presidents, and a substantial bloc of Republican senators, illustrates that the confirmation process can substantially raise the cost of appointment even when the eventual outcome is confirmation. Brandeis was the first Jewish American confirmed to the Court; the opposition combined professional rivalries, antisemitic prejudice barely disguised as concerns about Brandeis’s prior political work, and substantive disagreements with his progressive legal views. The four-month hearing established the modern practice of extended public examination of Supreme Court nominees, a practice that has been intermittent since 1916 but became standard from the 1950s onward. The confirmation succeeded, but the political cost was significant; Wilson devoted substantial political capital to securing the outcome.

Q: How does the Article III lifetime tenure clause shape American constitutional politics?

The Article III “during good Behaviour” clause, which has been read since the founding to mean lifetime tenure with removal only by impeachment, has shaped American constitutional politics in three durable ways. First, it makes Supreme Court appointments the most enduring single act of any presidency, with consequences extending decades beyond the appointing president’s tenure. Second, it makes the timing of appointments uniquely consequential and uniquely variable, with the patterns analyzed in this article. Third, it transfers substantial political contestation from electoral politics (which produces relatively rapid turnover in elected positions) to confirmation politics (which produces a once-or-twice-per-decade focal point of partisan organization). The clause has not been amended in two hundred and thirty-eight years and shows no political path to amendment, meaning its variance-producing properties are essentially permanent features of the American constitutional system.

Q: What’s the relationship between this pattern and the second-term presidential curse?

The second-term presidential curse, the pattern that re-elected presidents typically suffer political setbacks and reduced effectiveness in their second terms, has a Court-appointment dimension that the broader thesis often understates. Second-term presidents have generally received fewer high-impact appointments than first-term presidents, partly because the bench’s actuarial properties at the start of a second term are different from those at the start of a first term (the same justices are four years older but have not yet reached the modal retirement age), and partly because second-term presidents face Senate compositions that have typically shifted against them in midterm elections. Reagan’s elevation of Rehnquist in 1986 is the major modern exception, but the pattern overall reinforces the second-term-curse account: re-elected presidents, even when popular, often find that their most enduring institutional levers have already been pulled in the first term.

Q: Could constitutional reform reduce the appointment variance?

Several reform proposals have been advanced over the years to reduce the appointment variance: term limits for justices (typically eighteen years, with the term length set to give each president two appointments per four-year term), fixed retirement ages (typically seventy-five), and staggered appointment schedules tied directly to the electoral cycle. Each proposal would require constitutional amendment to override the Article III lifetime clause, and each faces the predictable resistance of incumbent justices, their political beneficiaries, and the broader political coalition that prefers the current distribution of opportunity. The historical record of this article does not directly evaluate the desirability of such reforms, but it does establish that the variance to be addressed is real and substantial: a forty-eight-fold spread in per-year appointment rates and an absolute spread from zero to ten across the full historical record. Any reform discussion that minimizes the variance on the grounds that all presidencies have roughly equal Court influence is empirically wrong.

Q: What is the lesson for evaluating presidential institutional legacy?

The lesson is that any evaluation of presidential institutional legacy that uses Supreme Court appointment count as a proxy will overstate the impact of demographically lucky presidents (Taft, Harding) and understate the impact of presidents whose other institutional contributions were substantial but who received few or no Court appointments (Carter, Polk, Buchanan in his own context). A more accurate evaluation must weight appointment counts by the long-term tenure and ideological coherence of the specific justices appointed, must account for political-skill mechanisms that some presidents used to accelerate retirements or block predecessors’ appointments, and must explicitly note when zero appointments reflects political failure (Andrew Johnson) versus demographic accident (Carter) versus brief tenure (William Henry Harrison). The variance analysis presented in this article is one step toward that more accurate evaluation; it is not the final word.