Judge Richard Posner may have just announced his own impending retirement from the United States Court of Appeals for the Seventh Circuit. Posner is arguing that federal judges should be subject to a mandatory retirement age of “probably 80.” The legendary jurist and writer is 78 years old. The interview may also add fuel to calls for Supreme Court justices to accept retirement. Ruth Bader Ginsburg is 84. Anthony Kennedy is 80. Stephen Breyer is 78.
As many on this blog know, I have long advocated the expansion of the Supreme Court rather than age-based limitation (here and here and here and here). In the last couple of weeks, I have recently had the pleasure of speaking with both Justices Ginsburg and Breyer and saw no diminishment in their intellectual abilities. They remain sharp and insightful. I have always viewed age as a blunt tool for such distinctions.
In fairness of Posner, I am sure that he would acknowledge that such rules are by their very nature generalizations. However, there is often a value to adopting rule that largely hold true — like the fact that most of us slow down physically and mentally with age. Since we cannot do jurist by jurist evaluations, it is sometimes needed to consider basic and mandatory rules. Yet, with the advancement of medical science, I wonder if such rules are likely to become more problematic with time.
Clearly, Supreme Court justices fall into a different category from lower court judges. There is no age limitation or mandatory retirement language in Article III — raising the question of the ability of Congress to impose a rule that would require a justice to leave the Court without a voluntary resignation or impeachment. Posner would likely acknowledge that such a rule would be discretionary for justices.
The same problem could arise for other federal judges who are guaranteed life tenure so long as they serve “during good Behavior.” Posner insists:
“I don’t think Article III’s reference to federal judges serving ‘during good Behaviour’ need be equated to life tenure. It may be read just to mean they can be fired at any age for bad performance. Thus interpreted, the Constitution (which is plastic) does not confer life tenure on federal judges.”
I am less inclined to treat the Constitution as “plastic” in its interpretation and view the addition of a mandatory requirement as more problematic. Having said that, this is a general rule of application for judges and it is not directed at any individual judge or responsive to any given ruling. There would be good faith arguments on both sides of such an argument, particularly for lower court judges.
What do you think?