America’s Graying Judiciary
Professor’s New Book Delves Into Consequences of Letting Federal Judges Serve for Life
Federal judges are older than ever, with the median age hitting 70 for the first time last year amid discussion spurred by the presidential election about how age can impact fitness for public office.
Illustration by Valerie Morgan
Back when leeches and dentures were considered top-notch medical care for first President George Washington and the average American lifespan was around 35 years, giving federal judges lifetime tenure seemed like a reasonable idea.
Cemented in the U.S. Constitution by the Founding Fathers in 1787, the rule was meant to ensure judicial impartiality, shielding judges from changing political tides. But a University of Maryland political science scholar says those intentions are increasingly butting up against reality.
In 2023, the median age of a federal judge hit 70 for the first time. In fact, 10% of federal judges are 85 years or older, and at least one 100-year-old judge has remained on the bench in 21 of the last 28 years.
“People are living longer, justices and judges are serving longer, and we know a lot more about how the brain functions and declines,” said government and politics Professor Patrick Wohlfarth. Neuroscience shows that as people get older, they process information more slowly, have memory and reasoning lapses, and rely more on shortcuts, leading to the question: “What are the consequences of having an aging judiciary?”
Wohlfarth works to answer that in his new book, “Cognitive Aging and the Federal Circuit Courts: How Senescence Influences the Law and Judges,” published Friday by Oxford University Press, co-authored by Ryan C. Black and Ryan J. Owens.
Since the late 1800s, when the U.S. Court of Appeals was created, the U.S. Senate has confirmed 835 federal judges, who were nominated by the president. While the U.S. Supreme Court is the most high-profile, those nine justices hear just 60 to 80 cases per year, a fraction of the tens of thousands that come before the Courts of Appeals or District Courts, whose decisions have wide-ranging consequences across the U.S.
“There’s a lot of politics around the subject of aging elected officials,” such as President Joe Biden and former President Donald Trump, Wohlfarth said. “But a key thing to remember is these judges aren’t elected, and they can serve as long as they want. Presidents are elected—people are making a choice for themselves.”
Wohlfarth explains why the U.S. is an outlier for giving federal judges lifetime tenure, the effects of cognitive aging on older judges and what judicial reforms are possible in a polarized political environment.
Term and Age Limits Are Typical Elsewhere
The
U.S. stands out as the only Western democracy without age limits for its
federal judges. Even states have more stringent rules: Maryland’s
Supreme Court requires judges to retire by 70. And throughout the
federal government and in certain industries, mandatory retirement is
common: FBI agents are out by 57 and commercial pilots must leave the
cockpit by 65.
Judges have incentives to step down or step back. Once they hit 65 and have served 15 years (or another combination that equals 80, with at least 10 years of service), they can retire with their full salary as their pension. Or they can take “senior” status, with just a quarter of their typical workload (retaining full pay and cost of living increases), freeing up a vacancy for the president to appoint a new judge.
“They’re at the pinnacle of their careers, and you’ve got to think that’s hard to give up,” said Wohlfarth. But unless Congress impeaches a judge, there’s no way to remove a judge against their will, and “there’s no mechanism to subject them to cognitive tests. We have no way of knowing, really, how many judges are suffering.”
Cognitive Aging Affects Judges in Multiple Ways
The three researchers analyzed thousands of opinions spanning decades and found that older judges:
- Lean on ideology: Older judges are more likely to apply Supreme Court precedent in a manner that fits with their partisan identification. “It’s not necessarily a bad thing for people to take shortcuts if they still make good decisions in the end, but when it comes to judges, it’s perhaps inconsistent with the ideal of an independent, impartial view and careful, deliberate decision-making,” said Wohlfarth.
- Take longer to issue opinions: The average “time to circulation” for a young opinion author (around 50) is approximately 46 days, based on archival data from the D.C. Circuit Court. For an older opinion author (around 75), that jumps to 101 days. Delayed decisions leave parties in limbo, with potential financial and employment consequences.
- … But those opinions are less complex: Older judges are more likely to copy language verbatim from briefs, and they seemingly rely more heavily on clerks to write their opinions. The problem is, said Wohlfarth, “federal judges are selected to make decisions, while clerks are selected to help … This suggests they are not doing enough original thought or writing.”
- Are more easily influenced: Judges frequently make decisions as part of a panel, and as they get older, they are more likely to adopt their peers’ views and less likely to have influence on younger judges.
Judicial Reform Is a Tough Hurdle
It would take a
constitutional amendment to create term or age limits, but given the
inability of Congress to pass critical budget bills and the fact that
it’s been more than three decades since the last amendment, that seems
unlikely.
There’s public support for some type of reform, however. Wohlfarth and his colleagues polled a nationally representative sample of 1,100 voting-age Americans and found that a majority support 18-year term limits, and would do so even if the idea was proposed by the opposing party. And U.S. senators from Sheldon Whitehouse (D-R.I.) to Marco Rubio (R-Fla.) have all indicated support for changing lifetime tenure.
For now, however, the most realistic judicial reforms would be for Congress to “sweeten the retirement rules” to allow judges to step down with full pay with fewer years of service, or to authorize funding for additional law clerks and staff to help judges better manage their workloads.
“The key is to make retirement a voluntary choice” for sitting judges, Wohlfarth said. “Hopefully that depoliticizes it,” because judges are often reluctant to leave while a president of the opposing party is in office.
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