Posner: All Judges Should Be Required To Retire At 80

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?

64 thoughts on “Posner: All Judges Should Be Required To Retire At 80”

  1. Mandatory retirement requirements for judges sounds like it could be a good idea. I believe that in the Ninth Circuit, however, the mandatory retirement age should be 45 years of age. Such a requirement would help to alleviate the damage that the Ninth Circuit inflicts on the law.

  2. I believe we are adequately prepared for the possibility of senility while SCOTUS Justice. There is an established precedent for self-retirement (Souter, O’Connor). If a Justice attempted to hold on to Office after losing marbles, I would trust peer pressure from colleagues and staff. If, at long last, we ended up with a Justice who suffered a dibilitating stroke, auto-accident or heart-attack with permanent mental incapacitation, and the individual could not make a retirement decision, I could see the “serve in Good Behavior” clause being invoked by the other Justices, the President, or Congress to force retirement.

    Where we might not be prepared would be for a form of senility where the incapacitation is subtle, and the Justice cannot perceive any problem. This scenario would be too close to being perceived as irrational and obstinate on the basis of differing viewpoint to mount a consensus forced retirement.

  3. I have another aspect to add to this uncomfortable topic of aging in the judicial system.

    1 in 10 people over age 65 have Alzheimers. After age 75, that number jumps to 1 in 3. Alzheimers is the modern day Plague. We make drivers take tests more often after a certain age. Why don’t we do the same in the Court system? Yes, there are people who are sharp as a tack until they reach 100. We benefit from that breadth of experience, knowledge, and wisdom. But there is a 1/3 chance that after age 75, they are losing their mind in the most horrifying way.

    As it stands, it’s often the family who finally take relatives into the doctor when it’s no longer deniable that their mind is going. What that would mean in the Court is that case after case would be affected until it’s finally acted upon.

    At the very least, there needs to be cognitive tests regularly after age 65 in such positions. It’s very emotional to think that all of us, if we’re lucky, will reach an age where this becomes a concern. And it’s hard to talk about. But it’s reality. And judges are supposed to deal in reality.

    1. Indeed, and no one would have to know that a judge failed a cognition test. He or she could just announce voluntary retirement.

  4. Any Judge that does not follow common Law for the people should be retired. Term limits should be a MUST on ALL Public Officials (DC, State, County, City). A Judge on the bench of a District Court for 20 years is plain corruption potential.

  5. Much as i would like to see Ginsburg retire, I do not agree with Posner.

    1. Why? It they want to continue working, they can land a position with a firm or found their own firm. The same applies to members of Congress. A tenured appointment is not property; mandatory retirement is no more unjust than a tenure limited to a term-of-years.

  6. Yes for mandatory retirement age. Some people need a little help knowing ‘when to say when’ – like RBG. Obama did his best to nudge her into retirement but she displayed poor judgment by assuming HRC, the embodiment of a corrupt establishment would win, and refused to step down. Will she now stay on until 2020 hoping a Democrat wins the election? How about if Trump or another Republican wins in 2020, will she try to hang on until 2024? Force her out.

    What about Chief Justice Roberts suffering a seizure back in 2007? It is suspected that he has epilepsy and “a susceptibility to seizures under certain circumstances.” Although Roberts was given a clean bill of health, I still question what happened to his head when he had a seizure and fell on a dock in Maine. It may explain his decision on Obamacare. 😉

    https://consumer.healthday.com/cognitive-health-information-26/brain-health-news-80/experts-split-on-whether-chief-justice-roberts-has-epilepsy-606900.html

  7. “There’s actually nothing in the Constitution that explicitly promises federal judges “lifetime appointments.” But the language of Article III says justices “shall hold their Offices during good Behaviour,” which can be reasonably interpreted as open-ended on the issue of term length.

    “Of course, the Constitution was written at a time when merely surviving infancy was a triumph—let alone making it to the Supreme Court with enough time for a 30-plus-year stint on the bench.”

    Adreienne LaFrance in Slate.

    http://www.slate.com/articles/technology/future_tense/2013/11/lifetime_appointments_don_t_make_sense_anymore.html

  8. Posner is an interesting person. The article by JT is distorted.
    I would not want Kennedy, or Ruth, to retire “due to their age”. As a matter of fact, I think that they are smarter or have better views as they got older.
    When is some human old enough to be competent to be an appeals judge? Right out of law school at age 23? Is age 33 too young? How about you Brown?

    Maybe a mental exam after age 70.
    Which Supreme Court Justice in all of our time was too senile to do the job?

  9. I’m generally uncomfortable with age-based assumptions, because like race and gender, you can make generalizations, but there are too many individuals who defy those stereotypes. I would rather see the requirement of a “fitness for duty” evaluation of any Justice who is perceived by his peers to be mentally or physically impaired. It could be patterned after the military, where a superior officer (or Chief Justice) fills out a form and states his reasons for the mandatory evaluation. But like in the military, if it turns out that the evaluation was requested for some improper purpose (retaliation, spite, politics, etc.), the penalties against the person making the improper request are severe.

    1. I would rather see the requirement of a “fitness for duty” evaluation of any Justice who is perceived by his peers to be mentally or

      You’d rather, but that would be readily gamed, and that makes it a bad idea.

  10. No problem. All it takes is an Amendment to the Constitution or a voluntary act or an impeachment and trial for turning for turning 80. Pick your poison. There are no other choices. But if and amendment is offered you run the risk of add ons. For example requirijng a Supreme Court Justice be a citizen, or have a law degree, etc. etc etc. None of which exist now.

    Two requirements only

    Nomination

    Confirmation

    That’s it.

    1. Dyslectic Fingers on the key board strikes again. – strike one of the ‘for turning.’ Replace and with ‘an’ and change spelling to ”requiring’ That IS it. By the way I noted in typing this part as I typed spelling it came out specimen. That was not dyslexia. But since this program has no spell checker …..

      Out out damn Bug!

  11. There was a piece in the Wall Street Journal last week about some hospitals requiring docs over 70 years old to be tested for cognition. It was, a very even handed article showing both sides of the argument. As you might expect, many docs adamantly oppose the arbitrariness of it. My thoughts are you test them if there are complaints. With electronic records taking over healthcare, the medical industry is always surveying patients on their experience. One fact in this article stood out to me, that being older docs have lower rates of med malpractice.

    Regarding judges. I have appeared before hundreds of judges, a few right around or over age 80. The legal profession has no surveys of clients regarding attorneys or judges of which I’m aware. That is DESPERATELY needed. And, I would say the same as I did about docs, or any profession. If there are complaints, then cognitive testing would be prudent.

      1. Desperate, What are your thoughts on that mandatory retirement law?

        1. Nick – as we age we lose some of our manual dexterity. I am not sure I would want a 70 y/o surgeon working on me. Supervising would be okay though.

  12. Didn’t Justice Ginsburg fall asleep during the state of the union with Obama was president? She then mention that she had (too much) wine at dinner prior? How long ago was that? That illustrates age, incompetence, poor decision making and behavior unfitting of a Supreme Court Justice.

    She’s also getting like my grandmother did when she got to be around 80. She says what she wants and she doesn’t care. She could live to be as old as my grandmother who died at 94. It was at Ginsburgs age we were looking for retirement villages.

    There needs to be a retirement age. With all due respect, Professor Turley you might find her sharp, but that might be too subjective.

    1. That’s exactly the problem I have with imposing age-based restrictions. Your experience with your grandmother is relevant only to your grandmother, not all 80 year olds in the world. It’s like someone saying that the black guy down the street doesn’t mow his lawn often enough, so no more blacks should be allowed in the neighborhood. And BTW, my son fell asleep on the couch during Obama’s speech. He is 24. Obama is long-winded and boring.

    2. Unless you’ve been in court a lot, folks have no idea just how boring and tedious some trials can be. I’ve seen judges in their 40’s/50’s taking a few Z’s on the bench. It’s not acceptable, but I understand it.

    1. Not true. The age limit is only applicable to Series 1811, law enforcement positions. But so long as you bring it up, that is another job classification where the age restrictions should be reviewed by Congress. The “in-by-35, and out by 55” with lifetime retirement after 20 years of service was created following WWII, when people smoke and drank and generally were not as healthy as they are today. Moreover, the federal law enforcement positions were far fewer, and those that existed were similar to police officer jobs, where one had to be physically fit. Since then, the number of 1811 positions has skyrocketed, and consists primarily of desk-jobs doing computer investigations; agency inspector general positions, and so forth. So to hire someone at 22, and give him a lifetime pension following his retirement at 42, is ridiculous, and is fleecing the taxpayer. Of course, there are no calls for reform from within the federal LEO community, because it’s a great deal for them. If anything, more and more Feds are seeking reclassification to “LEO,” including attorneys and IRS agents.

    2. TJ, One of the main reason for that 35 year old cut off was to prevent armed service vets double dipping. I worked for the Federal Bureau of Prisons. A lot of the older guys I worked w/ got a job before that age 35 cut off and were working on their second Federal retirement.

      1. One of the few smart things the Federal govt. did after 9/11 was waive the mandatory age 57 retirement age for FBI agents. A couple buddies of mine took advantage of that and worked a couple extra years. You want seasoned veterans during a crisis.

  13. 14 or 19 would allow the neophyte and the sage to infuse the court with their perspectives. If most of the judges are in their 60’s then this would be a good thing. Unfortunately in the US, as with most archaic systems, what is is sacred and regardless of how dysfunctional, cannot be changed. It’s like habits with children, old folks, dogs.

    1. Unfortunately in the US, as with most archaic systems, what is is sacred and regardless of how dysfunctional, cannot be changed. It’s like habits with children, old folks, dogs.

      With your incessant foot stomping issac I would characterize you as all three.

      1. The revealing statement of the quintessential loser is “Well if you like it so much there why don’t you move there?”, or “love it or leave it”, etc. Then there are those who look carefully at the situation and see where it can be made better. Those who cannot recognize the solutions to the problems take refuge in slogans and empty remarks. ‘Make America Great Again’, ‘Go somewhere else.’ Those who have not the ability to learn represent what’s wrong with this country.

        I came, decided to stay, made a decision to naturalize, and all consciously and with careful scrutiny. However, I am a citizen of the world of common sense and forward thinking before anything. There is still enough of that in the US to convince me to stay and wait for the dupes and other idiots to be parked where they belong, in the back.

  14. Yes, as the Baby Boomers enter retirement age, their unmitigated egotism and self-absorption cannot accept the fact that, like every other living organism, they too are mortal. So, they’ve conjured this myth that living to 100 or 110 with physical vigor and mental sharpness is not only possible but expected. You will DIE! More likely than not before you reach triple digits. And almost certainly with some level of physical debility and senility in your final years. Accept it. Even your monumental arrogance cannot cheat death.

  15. Judge Richard Posner may have just announced his own impending retirement from the United States Court of Appeals for the Seventh Circuit.

    Or Judge Posner is gently urging those on the Supreme Court that are at or nearing 80 years of age to kindly retire so he might have his own shot at the highest court in the land.

    1. The only time he was ever on a shortlist was around about 1985. He’s an awful man, so it’s good that never happened.

    1. That’s ok. Her brain retired long ago.

      Watch her lose consciousness at the State of the Union speech and the Pope’s historical address to Congress. Let’s pretend we don’t see that and that lucidity, coherence, rationality and conscientiousness have no materiality to the funciton of a Supreme Court Justice.

      Who gives a hoot about facts and objectivity?

      The only thing that bears in the judicial branch is which political side made the appointment.

      Some real jurisprudence there.

Comments are closed.