Justice Scalia, Supreme Court

Justice Antonin Scalia: What if justices could live to be 200? (photo: Antonin Scalia - The Oyez Project/wikimedia)

While much of the news next week will be dominated by how the Supreme Court could affect the future of health care in this country through its ruling on the Affordable Care Act, I thought now may be a good time to talk about how future health care developments could affect the Supreme Court. This a nice opportunity to combine my love of science fiction and public policy.

I’ve long considered one of the several big organizational design flaws in the United States Constitution is the lifetime appointment of Supreme Court judges. Frankly it is just too long and produces several issues. It can encourage mentally failing judges to stay on, it causes judges to play politics with their decision to retire, and an unusual string of bad luck could potentially give a single President the ability to reshape judicial power in the country for a generation.

That said, given the state of medicine from 1787 to the present, a “lifetime appointment” to the Supreme Court was really just a de facto 30-40 year appointment. A judge normally doesn’t make it to the Court until the age of 50, and almost no one has ever lived much past 100. That is very long but still finite.

That may no longer be the case in the future, thanks to the rapid advancement in medical knowledge and technology. In theory, advances in genetics, biomonitoring, nanotech and anti-aging could in the relatively near future extend average life expectancy by scores if not hundreds of years for those who could afford such treatments.

The youngest current Supreme Court justice is Elena Kagan, who is 51. With just current medicine she could live to the year 2060. But it is possible that by, say 2050, a technological ‘foundation of youth’ treatment is developed that could extend Kagan’s life by a hundred years. Kagan could be the first justice to serve for well over a century. If it doesn’t happen to her, it could happen to one of the very next appointees.

Our scientific knowledge is growing at an exponent rate, so as long as you are born on the right side of the curve, you could potentially live a very long time, as new life-extending technologies are developed quicker than you are aging.

The lifetime structure of Supreme Court appointments makes it uniquely unsuited to deal with this possible medical revolution. Imagine the political fight over replacing a justice who could serve for several hundred years. Imagine the problems with constitutionality decided by centuries old justices clinging to life who are far more conservative and completely culturally out of synch with modern society. If you believe members of the High Court are out of touch now, imagine how bad some members might be after 200 years in the same office.

Moore’s Law is still in effect. The growth rate in technology keeps getting faster. Governments will need to continuously adopt to the new reality, but sadly the US Constitutional and its governing institutions are very poorly suited to structural change. This is not a good sign for winning the future.