So, you think Biden and Trump are too old? 

Pauline Newman, a U.S. Court of Appeals judge for the Federal Circuit, was recently serving until the age of 96. The U.S. Supreme Court is also filled with its own "ancient ones."

In 2018, the late Supreme Court Justice Ruth Bader Ginsburg, appointed to the Supreme Court by President Bill Clinton, announced that she intended to stay on the court until 2023 when she would have been ninety years old. That would have given her a forty-year career on the bench. Justice Ginsburg's expected tenure on the bench was not unusual. Her colleague John Paul Stevens, appointed by President Gerald Ford, retired from the court in 2010 at ninety, after forty years on the bench.

In fact, the ten most recent departures from the Supreme Court, whether by retirement or death, occurred at an average age of eighty and after the justice had typically served twenty-six years on the bench.

In recent decades, the Supreme Court has looked more like a retirement home than an active and responsive government institution.

Need it be so?

According to the National Center for State Courts, most American states (thirty-one plus the District of Columbia) have age limits for their judges, typically requiring retirement at age seventy. Vermont permits service until ninety. States with and without a mandatory retirement age also impose indirect limits on a judge's age through the election process.

At the state level, both Democrats and Republicans, as well as liberals and conservatives, generally acknowledge that limiting the terms of judges is sound public policy and does not compromise judicial independence. Because U.S. Supreme Court justices are increasingly staying in office until they are elderly, we believe that the prudent age limits at the state level should also apply to the federal judiciary.

For an alternative national model, we can look at judicial tenure in Europe, where age or term limits for judges are typical.

In Germany, judges at the Federal Constitutional Court can serve up to twelve years or until they reach the mandatory retirement age of sixty-eight. The current panel of judges ranges from fifty to sixty-eight years of age. In the French Cour de Cassation, the term is six years, with only a single re-appointment permitted after an initial term in office.

In the United Kingdom, on the other hand, while justices are appointed for an indefinite term, they too are required to retire at seventy-five. This ceiling is similar to the “life tenure” system adopted in the Supreme Court of the Netherlands, where mandatory retirement is set at the age of seventy. Thanks to these requirements, the average age of a British or Dutch Supreme Court judge is sixty-five and sixty, respectively.

In Ireland, the Courts and Court Officers Act 1995 lowered the retirement age of judges from seventy-two to seventy, and a subsequent law introduced a tenure of seven years for the Chief Justice. Under Spanish law, in addition to the lifetime tenure and mandatory retirement rules, judges may request a two-year extension, thereby raising the retirement age to seventy-two (which is still far below the average age of a U.S. Supreme Court judge). Accordingly, although life tenure is still the prevailing term of appointment across European jurisdictions, there seems to be a consensus that a mandatory retirement age is necessary to preserve a healthy judiciary.

Even international tribunals, whose structures are primarily modeled on “best practices” in the legal field, introduce some limits on judicial terms and re-appointment. The International Court of Justice and the International Criminal Court based in The Hague have nine-year judicial terms, with the latter prohibiting re-election. While an explicit retirement age is not mandatory, the existing mechanisms ensure that the judiciary is periodically refreshed with new perspectives and ideas.

Based on these comparisons, it is clear that the U.S. Federal judiciary is an outlier in having no age or term limits on their service. Therefore, we propose amending the U.S. Constitution to require that the justices of the Supreme Court and other federal judges retire on their seventieth or seventy-fifth birthday. Limiting tenure for the high court would mean that, in future decades, a typical Supreme Court justice would still probably serve for two decades or more.

No judge is exempt from aging. A simple internet search provides thousands of articles on the physiological effects of aging. The Merck Manual, to use one prominent example, describes the inevitable decline of the body with aging: the loss of muscle mass, the decrease in the ability to repair DNA, and a weakening of the immune system as well as the liver and the kidneys, the deterioration of the lungs and the peripheral nervous system. The list goes on. The decline of the mind is as inevitable as the gradual deterioration of the body.

For example, according to the British Whitehall II study of seven thousand civil servants, memory and mental reasoning began to decline in the late forties, and the deterioration accelerated in the late sixties. Some individuals age more slowly than others, but their general health and mental capabilities inevitably deteriorate as they age. At some point, the capacity to keep up with a demanding physical and analytic workload is increasingly strained.

If a federal judge is required to retire at seventy or seventy-five, as in many E.U. countries, he or she would not likely be cast into the wilderness. Those with the requisite energy and mental alertness would probably have follow-on careers as deans, professors, mediators, and partners in prestigious law firms.

There are strong arguments for adopting age limits for the federal judiciary. First, unlike most of their predecessors, contemporary judges and justices often hold office until they are ancient. Some of them seem not to have the self-awareness or discretion to step down and let younger minds take over. New blood, new ideas, new energy, and new approaches to the subject matter can invigorate institutions, the federal courts included.

No one denies the value of age and experience. However, younger judges bring more contemporary legal and technical expertise to the bench. Judges brought up in the age of the Internet, smartphones, software, Artificial Intelligence, biotechnology, DNA, venture capital, artificial organs, and vast population migrations are likely to be more informed about and engaged with these issues than judges who were educated and pursued their careers in much earlier decades. Younger judges may also be liberated from the need to refight the ideological battles of past decades.

Age limits may be one of the rare issues that could cross the partisan divide. While Democrats might wish to limit the reach of President Trump's youthful appointments to the bench, Republicans might want to restrain a generally liberal judiciary that appears to intrude regularly in policymaking. Both sides will likely see the virtue of age limits in guaranteeing a constantly refreshed and younger federal judiciary.

Article III of the U.S. Constitution does not appear to permit any statutory age limit on a Federal judge's time in office. Specifically, Section 1 notes that “Judges, both of the Supreme and inferior Courts, shall hold their offices during good Behavior.”

A change in Federal court age limits could come about only through a constitutional amendment. Perhaps such an initiative, applied to newly confirmed judges and justices, could stimulate a vibrant national discussion on judicial age limits and the role of the courts in the twenty-first century.

And while we are at it, we might consider age limits for the Presidency and Congress as well.

About the Authors: 

James S. Fay is a semi-retired California attorney, political scientist, and college administrator.

Victoria M. Fay holds a Master's in Corporate Law from the University of Cambridge. She lives in London and is training to qualify as a solicitor.

Image: Shutterstock.