How Old is Too Old? Addressing Wellness in an Aging Federal Judiciary

Karen Williams was the first female judge and the first female chief judge for the Fourth U.S. Circuit Court of Appeals. She was at the peak of her career and regarded as a potential U.S. Supreme Court nominee in 2008 at the age of 57 when she received devastating news: a diagnosis of early-onset Alzheimer’s disease [1]. Soon after, she retired from the bench, acknowledging that her illness would draw into question any future decisions she made as a judge [2].

Karen Williams’ case highlights the importance of judicial well-being in the legal system. Judges fulfill an important role in the court system and cases of cognitive impairments in judges can have dire consequences, including their past rulings being called into question. One area of judicial well-being that has received significant attention is the effects of aging on the ability of judges to successfully and justly perform their duties. In 2020, the average age of a federal judge was 68 years old, with many judges choosing to serve until their death, compared to 1920 when that figure was 59 years old [3]. Therefore, it is unsurprising that as the average age of federal judges has crept up over the last few decades, so too has concern over the cognitive capacities of older judges.

Such a concern has generated heated debate around whether or not there should be a mandatory retirement age for judges. Proponents of a mandatory retirement age for judges claim that mandatory retirement is necessary to create vacancies for younger judges and to safeguard against a judiciary plagued with age-related health risks [4]. David Garrow, a legal historian and Professor of Law & History and Distinguished Faculty Scholar at the University of Pittsburgh School of Law, does not “think it’s in the public interest to have people certainly over 80 … exercising serious power, whether it’s the Court, whether it’s in Congress” and that the inability of American voters to remove aging judges like they can aging lawmakers is a serious concern [5]. Garrow also notes the dangers of an unpredictable death while a justice is still in office, pointing to the partisan conflict that erupted after Justice Scalia and Justice Ginsburg’s respective deaths [6].

However, critics maintain that a mandatory retirement age would result in a crucial loss of wisdom brought by experienced judges. Alan Ehrenhalt, an American journalist and author, claims that mandating a judicial retirement age poses “the problem of losing people with decades of experience and stable judgment” [7]. He also voices the fear that politicians may appoint increasingly young judges to maximize their time on the courts, creating further imbalance. Further, he argues that old age in no way signals incompetence, and that “even one Holmes every few decades is worth a little messiness around the edges” [8]. This article argues that instating a mandatory retirement age is an over-simplistic and inadequate solution to the complex issue of ensuring the well-being of an aging judiciary. Instead, a more effective strategy would be to draw on the wellness model of the 9th U.S. Circuit Court of Appeals, which includes educating judges on wellness, administering regular cognitive exams, and normalizing discussion around aging.

A Brief Context of Mandatory Retirement Ages for Judges

Before delving into the debate around a mandatory retirement age, it is necessary to clarify that the federal -- not the state -- judiciary is the one under discussion in this article. Currently, 32 states and the District of Columbia have mandatory retirement ages for their judges, which range from 70 to 75 years of age with the exception of Vermont, which permits judges to work up to 90 years of age [9]. However, such is not the case for federal judges, who include Supreme Court justices, federal circuit judges, and district judges. Instead, Article III of the U.S. Constitution states that federal judges “shall hold their offices during good behaviour” [10], meaning that federal judges hold lifetime tenure and, aside from retiring, can only be removed through impeachment and conviction. Thus, instating a mandatory retirement age for federal judges would require a constitutional amendment, which is well known to be a complex and lengthy process. The process would be further complicated by disagreement over the specific age cut-off point for judges to serve, as already witnessed in state legislatures’ struggles to constitutionally amend mandatory judicial retirement ages [11]. The closest attempt to amend the Constitution came in 1954 when the U.S. Senate passed a bill establishing a mandatory retirement age of 75 for federal judges [12]. However, the bill was never turned into law as public attention shifted to the Supreme Court’s ruling of Brown v. Board of Education (1954) later that year.

Benefits and Drawbacks of a Mandatory Retirement Age & What Science Says

The lack of a mandatory retirement age for judges sets the U.S. apart from other Western democracies such as Canada, Great Britain, and Australia [13], a fact that has been used to support a retirement age. The prevalence of mandatory retirement ages reflects the widespread belief that aging leads to degenerating mental faculties, and that hence there must be safeguards to protect courts from mental decrepitude among aging judges [14].

There is valid reason to be concerned about the cognitive well-being of aging judges. As life expectancy in the U.S. has increased, so has the number of individuals who develop Alzheimer’s disease, an “irreversible, progressive brain disorder that slowly destroys memory and thinking skills” [15]. According to the National Institute on Aging, the average age of late-onset Alzheimer’s disease — the most common form of dementia — is in the mid-60s, and the probability of developing symptoms increases with age. Many federal judges are well above their mid-60s and therefore at higher risk of developing neurological diseases such as Alzheimer’s, though the precise impact of such illnesses on the federal judiciary is not fully known.

Despite the increased health risks associated with age, it is important to recognize that there is great variability across individuals and that such should preclude a set retirement age for all judges. Research has shown that people’s brains age differently, with individuals showing declines in cognitive functioning at different ages [16]. Therefore, even if there were to be a mandatory retirement age, there would be questions over which specific age to select. The current retirement ages in state courts range from 70 to 75, but these would seem to be arbitrary figures when a judge who is 75 years old may retain more cognitive faculties than their 65-year-old colleague. In addition, studies have shown that there is no overall relationship between age and job performance, and that this finding extends to individuals in both professional and non-professional careers [17].

Furthermore, setting a mandatory retirement age would disregard the benefits that older judges bring to the courts. Older judges tend to be more experienced and hence bring valued wisdom to their decision-making [18]. For instance, imagine if Ruth Bader Ginsburg — who served until her death at age 87 — or Oliver Wendell Holmes Jr. — who retired at 90 years old — had retired when they were 75 years of age. Some of these two justices’ most enduring contributions to the Court came in the later years of their life, and it would be difficult to find someone who would argue that they were not cognitively fit to serve past 75 years old. Another fear among opposers of a mandatory retirement age is that governments may prioritize nominating younger judges to important positions to ensure they will remain in power for a longer period of time [19], which is a serious concern in this day’s increasingly polarized courts. Establishing a mandatory retirement age would result in a critical loss of experience and diversity essential in the courts.

A More Effective Approach to Wellness

Given the aforementioned challenges of implementing a mandatory retirement age for federal judges, a more effective method of regulating judicial well-being would be to follow the model of the Ninth Circuit Wellness Committee. Established in 2000, the Ninth Circuit Wellness Committee was the first of its kind, an ambitious attempt to address and improve upon judicial disability procedures [20]. Since its inception, the Committee has spearheaded initiatives such as providing education for judges and their families on health and wellness issues, developing a private and anonymous assistance line, and hosting conferences to spread awareness on transitions to senior status or retirement. Providing health and wellness education helps to normalize discourse around the effects of aging, which can allow judges and their families to make more informed decisions about when to step down from the bench. Their Private Assistance Line Service (PALS) program provides guidance, resources, and referrals to judges who are concerned about colleagues who are seemingly struggling at work. They also foster engagement between retired and senior status judges and current judges to create open discussions about what kinds of options are available to aging judges.

Cognitive testing — hailed as a solution to the growing demand to ensure judges retain the ability to carry out their duties successfully — is another area which has recently been receiving interest in the Ninth Circuit Wellness Committee. Francis Shen, an associate professor at the University of Minnesota and the executive director of  Massachusetts General Hospital Center for Law, Brain, and Behavior, suggests that judges should undergo mandatory but confidential cognitive testing every five years for their own knowledge, and to help inform their future career decisions [21].

Implementing such a system — where information on judges’ health and cognitive ability is used to help them — would be more feasible and helpful than simply forcing judges to retire based on the results of their mandatory cognitive tests. For one, there is no consensus on what kinds of tests should be administered to determine judges’ competencies to fulfill their duties [22]. Secondly, cognitive functioning falls along a spectrum and it is incredibly difficult to determine cut-off points at which a judge is determined no longer able to adequately perform their job [23]. Therefore, cognitive testing should certainly be taken advantage of to provide judges with useful information about their cognitive functioning, but should not be solely used to determine the cognitive fitness of a judge to remain on the bench.

The creation of the Ninth Circuit Wellness Committee sparked interest in establishing more health and wellness initiatives for judges. In 2011, The Judicial Conference of the United States agreed to encourage the establishment of wellness committees in circuit judicial councils. However, as of 2018, most circuit courts had not yet implemented wellness committees [24]. To address the concerns over the cognitive capabilities of an aging judiciary, the federal courts must take initiative in promoting wellness, education on cognitive impairments, and cognitive testing. The solution is not to establish a mandatory retirement age — a route that is not only unlikely to succeed due to the associated constitutional challenges, but also overly simplistic in reducing the determination of judicial competency to a series of test numbers. Instead, judges of all ages should be provided with comprehensive support, guidance, and education on the subject of aging. This way, we will best serve those who serve us.

References

[1] Debra Cassens Weiss, “Conservative 4th Circuit Chief Judge Retires Due to Early-Onset Alzheimer’s,” ABA Journal, July 9, 2009, https://www.abajournal.com/news/article/conservative_4th_circuit_chief_judge_retires_due_to_illness.

[2] Ibid.

[3] Federal Judicial Center, “Demography of Article III Judges, 1789-2020”, 2020. https://www.fjc.gov/history/exhibits/graphs-and-maps/age-and-experience-judges.

[4] William E. Raftery, “Happy Birthday! Now Get Out,” Judicature 99, no. 3 (2015): 5–6.

[5] Russell Berman, “No Other Western Democracy Allows This,” The Atlantic, September 25, 2020, https://www.theatlantic.com/politics/archive/2020/09/supreme-court-retirement-age/616458/.

[6] Ibid.

[7] Alan Ehrenhalt, “When It Comes to Judges, How Old Is Too Old?” Governing, January 25, 2021, https://www.governing.com/assessments/When-It-Comes-to-Judges-How-Old-Is-Too-Old.html.

[8] Ibid.

[9] William E. Raftery, “Happy Birthday! Now Get Out.”

[10] U.S. Constitution, art. 3, sec. 1.

[11] William E. Raftery, “Happy Birthday! Now Get Out.”

[12] Alan Ehrenhalt, “When It Comes to Judges, How Old Is Too Old?”

[13] Russell Berman, “No Other Western Democracy Allows This.”

[14] David Garrow, “Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment,” University of Chicago Law Review 67, no. 4 (1 September 2000), https://chicagounbound.uchicago.edu/uclrev/vol67/iss4/2.

[15] National Institute on Aging, “Alzheimer’s Disease Fact Sheet,” Accessed 8 April 2021. http://www.nia.nih.gov/health/alzheimers-disease-fact-sheet.

 [16] Helen Christensen,  Andrew J. Mackinnon, A. E. Korten, Anthony F. Jorm, A. S. Henderson, P. Jacomb, and Bryan Rodgers. "An analysis of diversity in the cognitive performance of elderly community dwellers: individual differences in change scores as a function of age." Psychology and aging 14, no. 3 (1999): 365.

[17] Glenn M. McEvoy and Wayne F. Cascio. “Cumulative Evidence of the Relationship between Employee Age and Job Performance.” Journal of Applied Psychology 74, no. 1 (February 1989): 11–17. doi:10.1037/0021-9010.74.1.11.

[18] Joel Cohen, “Judges and Aging -- Some Random Thoughts,” New York Law Journal, December 23, 2020, https://www.law.com/newyorklawjournal/2020/12/23/judges-and-aging-some-random-thoughts/.

[19] Alan Ehrenhalt, “When It Comes to Judges, How Old Is Too Old?”

[20] Richard Carlton, "Addressing Disability and Promoting Wellness in the Federal Courts," Judicature 90, no. 1 (July-August 2006): 26-29.

[21] Francis Shen, “Aging Judges,” Ohio State Law Journal 81, no. 2 (2020): 237–314.

[22] Ibid.

[23] Amanda Robert, “How Can Aging Judges Know When It’s Time to Hang up the Robe?” ABA Journal, December 1, 2020, https://www.abajournal.com/magazine/article/knowing-when-its-time-to-hang-up-the-robe.

[24] “Circuit Courts Forge Ahead with Modern Broadcast and Wellness Policies,” Fix the Court, February 5, 2018, https://fixthecourt.com/2018/02/circuit-courts-forging-ahead-modern-broadcast-wellness-policies/.