In Praise of Older Judges: Raise the Mandatory Retirement Age?
The judiciary is the nation’s premier geriatric occupation.”1 J udging is“learning-by-doing” activity whose efficiency increases as judicial experience increases.2 The conventional wisdom is that “judges can perform creditably at advanced ages because to be a good judge requires good judgment, and judgment is a function of age and experience.”3 & #x201c;In short, a mature professional judgment is central to the concept of a wise judge, and the intellectual and dispositional qualities that go to create such a judgment plainly improve with age up to a point. . . and then plateau until senility.”4
The removal of senile judges, of course, is neither a pleasant nor easy task. To avoid what is generally an infrequent task, the Florida Constitution requires that members of the state judiciary retire after achieving the age of 70, except to complete a term (of which less than half remains) or to serve a temporary assignment.5 This concept is popularly known as “constitutional senility” whereby elder judges and justices are deemed sufficiently aged that they are irrebuttably presumed to require replacement posthaste.6
Many state judicial systems have mandatory retirement ages. Most require retirement at 70,7 some at 728 and 75,9 w hile others have different retirement mechanisms.10 The federal judiciary, of course, permits judges to remain active ( i.e., full-time) as long as they wish. Federal judges whose years of service and age add up to 80 ( e.g., a 70-year-old judge who has served for 10 years) may voluntarily take “senior” status and accept lesser caseload responsibilities (provided they have reached 65). This “rule of 80” is one the judges themselves may voluntarily invoke; it does not mandate retirement at any particular age. The point is that many states and the federal system recognize that older judges can continue to adjudicate full-time beyond their 70th birthdays.
States are free to fix mandatory retirement ages for their judges, the reason being that states have an important interest in “maintaining a judiciary fully capable of performing the demanding tasks of the judicial office.”11 On a constitutional level, the Supreme Court has accepted—though not endorsed—the generalization that judges can suffer a sufficiently significant deterioration in their abilities by age 70 to justify a mandatory retirement law.12 The court admitted that this generalization is “probably not true” and that it “may not be true at all”—yet deferred to the exercise of state powers over its judiciary under the minimal inquiry required under the equal protection clause applicable to age discrimination claims.13
Does the Florida Constitution’s mandatory judicial retirement age of 70 imprudently dispense with the productive assets of the septuagenarian judiciary? A mandatory retirement age that forces out productive judges more frequently than senile judges may need adjustment. This proposition is particularly true because judging is a so-called “late peak/sustained” activity, meaning that judicial performance peaks later in life and remains stable until the onset of senility.14 As one prominent scholar and jurist has noted: “The remarkable thing about judges. . . is not that they hang on to their jobs to such advanced ages but that they perform them creditably, and indeed sometimes with great distinction, at advanced ages.”15
One need only consider the examples of Holmes, Brandeis, and Learned Hand (who each performed with distinction into their 80s) to confirm this point. As such, members of the judiciary can be expected to have a substantial stock of productive years even after attaining age 70.
In addition, the increased longevity of the populace, including the judiciary, makes it important to inquire periodically whether adjustments to mandatory retirement ages are justified. When Florida’s mandatory retirement age of 70 was adopted in 1972, the average life expectancy of men and women of all races at birth was approximately 70.75 years.16 That was 25 years ago. In 1992, this life expectancy had increased to 75.8 years, reflecting an increase of approximately five years.17 Most significantly, life expectancies increase as persons live longer.18 For example, persons reaching age 65 in 1992 could expect to live to 82.5 years of age.19 In contrast, in 1972 a 65-year-old could expect to live to 80. For this reason, judges—who generally are not appointed or elected until later life—can expect to live into their early eighties, well beyond the current mandatory retirement age.
A mandatory retirement age can also have gender and racial implications. Females live longer than males, and whites live longer than nonwhites. In 1992, 65-year-old females and 65-year-old males could expect to live to 84.2 and 80.4, respectively.20 S imilarly, 65-year-old whites and 65-year-old nonwhites in 1992 could expect to live to 82.6 and 81.5, respectively. A mandatory retirement age that is set too low might have a greater impact on females who have significantly greater average life expectancies compared with males ( i.e., about 3.8 years). Likewise, a “low” mandatory retirement age might have a greater impact on white judges who have a greater life expectancy compared with nonwhite judges ( i.e., about 1.1 years). The magnitude of either the gender or the race effect of a mandatory retirement age is far from clear and may be inconsequential in terms of the policy debate ( i.e., should white females have a higher mandatory retirement simply because they live longer? Should nonwhite males have a lower mandatory retirement age simply because they don’t?). What is clear is that judges of all races and genders can expect to live more than 10 years beyond the current mandatory retirement age of 70.
The “aging of America” also plays important sociological and political roles, particularly in Florida. The elderly population ( i.e., over age 65) is growing at a rate that significantly exceeds population growth generally.21 This gerontification trend is evident in Florida, which has the highest percentage (19%)—and the second largest population—of persons 65 and over.22 As such, Florida courts will increasingly address issues affecting the elderly population, and the judiciary’s “constituents” will be increasingly dominated by an elderly and politically active electorate. These trends make it more likely that a proposed increase in the mandatory retirement age will be favorably received among the swelling ranks of older voters.
A final trend is the expanding use of technology and law clerks, which enable older judges to remain productive past 70.23 An increased mandatory retirement age would not necessarily reduce the quality or quantity of judicial output. Of course, an increase in the mandatory retirement age is likely to cause incumbent judges to remain active longer, thereby reducing the number of openings available for (typically) younger, aspiring judges. This effect, however, will likely only occur in the appellate courts because so few trial judges serve past the age of 60.24
In summary, increased longevity, technological developments, and other demographic trends make a strong case for an upward adjustment in the current mandatory retirement age of 70. A task force has suggested an increase to age 72 without the exception for completing terms.25 This proposal is on the right track. While eliminating the exception is laudable, consideration should be given to raising the absolute mandatory retirement age above 72.26 A number of states require retirement at 75, and the federal judiciary has no limits. In practice, the Florida Constitution currently allows some judges to serve beyond age 70 (in some cases) until they are almost 73.27 In light of the strong arguments in favor of increasing the mandatory retirement age, the Constitution Revision Commission should support an amendment to Art. V that will enable senior members of the judiciary to continue serving beyond age 70, and at a minimum, at least until age 72, with no exception for completing half of a remaining term. q
1 Richard A. Posner, Aging and Old Age 180 (1995).
2 Id. at 197.
3 Id. at 192.
4 Id. at 194.
5 Fla. Const. art. V, §8 (1995). In practice, appellate judges who turn 70 at the mid-point of a six-year term can serve until they are almost 73. This “exception” was likely a political accommodation for incumbent judges in 1972.
6 This article does not consider the merits of retirement systems other than a mandatory retirement age ( e.g. , the federal system’s use of economic incentives to encourage retirement) and, instead, is limited to only whether Florida’s existing mandatory retirement age should be adjusted.
7 See, e.g. , Alaska Const. art. IV, §11 (West 1996); Ariz. Const. art. VI, §39 (West 1996); Conn. Const. art. V, §6 (West 1996); La. Const. art. V, §23 (West 1996); Md. Const. art. IV, §3 (West 1996); Mass. Const. art. I, pt. 2, c. 3 (West 1996); Mo. Const. art. V, §26 (West 1996); N.H. Const. art. LXXVIII, pt. 2 (West 1996); N.Y. Const. art. VI, §25 (West 1996); Ohio Const. art. IV, §6 (West 1996); Or. Const. art. VII, §1a (West 1996); Vt. Const. Ch. II, §35 (West 1996); Ga. Code Ann. §47-10-100 (West 1996); Kan. Stat. Ann. §20-2608 (West 1996); Minn. St. Ann. §490.125 (West 1996); 42 Pa. Cons. Stat. §3351 (West 1996); S.D. Codified Laws §16-6-31 (West 1996).
8 See, e.g. , Colo. Const. art. VI, §23 (West 1996); Iowa Code Ann. §602.1610 (West 1996).
9 See, e.g. , Tex. Const. art. V, §1-a (West 1996); Ind. Code Ann. §33-2.1-5.1 (West 1996); Utah Code Ann. §49-6-801 (West 1996).
10 See Okla. Stat. Ann. tit. 20, §1102 (West 1996) (eligibility for retirement based on schedule of years of service and age).
11 Jeffrey Shaman, Supreme Court Upholds Mandatory Retirement of State Judges , 75 Judicature 222, 222 (Dec./Jan. 1992).
12 Gregrory v. Ashcroft , 501 U.S. 452 (1991).
13 Id. at 473.
14 Posner, supra note 1, at 180. Chief Judge Posner uses a simple economic life-cycle model that analyzes productivity across various careers. For instance, professional football is an “early peak, not sustained” occupation due to its requirement of youthful players and their relatively short-lived careers. Id. at 160-61. Theoretical mathematicians are also included in this category due to the high level of fluid intelligence required and the general inability to sustain the requisite level of creativity. Id. at 157, 159-60.
15 Id. at 181.
16 U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, and National Center for Health Statistics, Vital Statistics of the United States, 1992, Life Tables at 2 (1992).
17 Id.
18 This concept merely reflects that as persons live longer, they have a greater likelihood of living beyond the average life expectancy at birth. Posner, supra note 1, at 158 (“The sum of age and remaining life expectancy increases with age, since every year lived transforms a probability of surviving that year into a certainty.”).
19 U.S. Census Bureau, Sixty-Five Plus in the United States (May 1995) http:// www.census.gov/socdemo/www/agebrief.html.
20 Vital Statistics of the United States, 1992, Life Tables, supra note 16, at 12.
21 Sixty-Five Plus In The United States, supra note 19.
22 Id.
23 Posner, supra note 1, at 181. Chief Judge Posner notes that technology and law clerks enable a few senile—and some senescent—judges to continue producing opinions. Id. (describing “senescent judges” as those “past their prime” but not yet senile).
24 Florida Article V Task Force Report, Final Report 88-89 (Dec. 1995).
25 Id. at 87-89; see generally Billy Buzzett, The Article V Task Force: A Mini-Constitutional Revision Commission , 69 Fla. B.J. 46 (July/Aug. 1995).
26 The Article V Task Force’s final report does not address increased judicial longevity.
27 Under the “completing half of a remaining term” exception, a judge who turns 70 on the first day in the second half of her term can serve until she is 72 years and 364 days old (perhaps 365 days in a leap year).
Susan L. Turner is a partner in the Tallahassee office of Holland & Knight, engaging primarily in appellate practice. She received her J.D. from the University of Florida College of Law, where she served as editor in chief of the law review. The views expressed here are solely the author’s unless otherwise attributed.
This article is submitted on behalf of the Appellate Practice and Advocacy Law Section, Raymond Thomas Elligett, Jr., chair, and Roy D. Wasson and Jacqueline Shapiro, editors.
