Term Limits

Two Cheers for Supreme Court Term Limits

The idea has a lot of merit. But it will be hard to enact, and probably won't do much to end partisan conflict over Supreme Court appointments.

|The Volokh Conspiracy |

Credit: Fix the Court.

 

Recent and ongoing battles over Supreme Court nominations have increased interest in the possibility of limiting the terms of Supreme Court justices. This idea has long enjoyed  widespread (though not universal) support from legal scholars on different sides of the political spectrum, such as Sanford Levinson on the left, and Steve Calabresi on the right. While there are different variations of the proposal, in most versions Supreme Court justices would be limited to non-renewable 18 year terms, as opposed to the life tenure they enjoy now. I am happy to support the idea, as well. It has a number of important advantages, including some that have been overlooked by advocates. But it is unlikely to to put an end to bitter confirmation battles and partisan conflict over the courts more generally.

Steve Calabresi enumerates the potential benefits of term limits in an excellent recent New York Times op ed:

Supreme Court justices often try to retire during the presidency of someone sympathetic to their jurisprudence. Of course, that doesn't always work: Justice Scalia died after almost 30 years on the high court trying to wait out President Barack Obama, and Justice Ginsburg died after nearly 27 years trying to outlast President Trump.

Over all, though, strategic retirements give the justices too much power in picking their own successors, which can lead to a self-perpetuating oligarchy….

The unpredictable American system of life tenure has led to four presidents picking six or more justices and four presidents selecting none, as happened with Jimmy Carter. This gives some presidents too much influence on the Supreme Court and others too little.

It also leads to justices remaining on the Supreme Court when they are unable either physically or mentally to do the job…

The solution is for Republicans and Democrats to unite in supporting a constitutional amendment that fixes the size of the Supreme Court at its current nine justices, each of whom would serve an 18-year nonrenewable term, staggered so that one seat opens up during the first and third years of a president's four-year term…..

Given the length of this term, longer than for judges on the high courts of any other constitutional democracy, the justices would be amply independent.

Presidents would no longer have the incentive to pick comparatively young nominees — say, someone 45 to 50 years of age — to project their influence decades into the future. Justices would lose their power to help pick successors who share their views by retiring strategically.

To this list, I would add another point: As life expectancy continues to increase (at least once the awful coronavirus pandemic ends), life-tenured justices could potentially serve for even longer than they do now. Imagine a world where people routinely live to the age of 100 or more, and retain their ability to work up until that age, or close to it. A justice appointed at the age of 45 or 50 (as is increasingly commonplace) could serve for fifty or sixty years or even longer. At some point, giving people largely unaccountable power for that long will rightly be seen as intolerable. Longer life expectancy is a great thing! But it interacts poorly with life tenure for positions of great power.

At the same time, unlike Calabresi, I doubt that term limits would "end what has become a poisonous process of picking a Supreme Court justice" or "depoliticize the court and judicial selection." Even if justices serve for "only" 18 years, they will still have great power. And presidents will still have a strong incentive to appoint justices whose judicial philosophies align with his and his party's priorities. For their part, senators will continue have strong incentives to oppose nominees whom they (and their party) see as ideologically inimical. We live in an era of intense partisan polarization, including divisions over many legal issues that are likely to come before the Supreme Court, including such matters as abortion, affirmative action, law enforcement powers, gun rights, and (at least in recent years) immigration. The gap between the way a conservative Republican justice and a liberal Democratic one will vote on these and other issues is predictably large (even if there will be a good many outlier cases).

So long as that polarization persists, I highly doubt it will be possible to return to the era of relatively noncontentious Supreme Court nominations. Conflict is likely to continue, particularly in situations where the Senate and the presidency are controlled by different parties.

Calabresi's proposal includes a provision designed to force the president and the Senate to cooperate on nominations:

Failure to confirm a justice by July 1 of a president's first or third year should lead to a salary and benefits freeze for the president and all 100 senators, and they should be confined together until a nominee has been approved. The vice president would act as president during this time and the Senate would be forbidden from taking action whatsoever on any of its calendars.

Like Jonathan Adler, I am skeptical that this "confinement" can be enforced. I also highly doubt that Congress would be willing to enact a constitutional amendment that included this punitive aspect.

Ilya Shapiro of the Cato Institute (who should not be confused with the present writer, but often is) offers some additional reasons why term limits are unlikely to end the partisan war over judicial appointments here.

Perhaps the biggest problem with term limits for SCOTUS justices is that they would be extremely hard to enact. In my view, that would require a constitutional amendment. That necessitates securing a massive supermajority: 2/3 of both houses of Congress, and 3/4 of state legislatures. While SCOTUS term limits have become more popular in recent years, I am doubtful that the idea has the level of support needed to pass. However, support might grow over time, especially if I am right about increased life expectancy creating a situation where justices routinely serve for fifty years or even longer.

In addition, there will be inevitable wrangling over how to deal with incumbent justices. If they get "grandfathered" in and allowed to serve for life, that means term limits will not have much effect for many years to come. If they are forced to accept limits themselves, the amendment is likely to be opposed by whichever party currently enjoys a majority on the Court.

Some scholars argue that term limits can be imposed by statute, without a constitutional amendment. They contend that life tenure in the Constitution simply requires that federal judges have some judicial position for life, not necessarily that of SCOTUS justice. Thus, Congress could enact a law under which, for example, justices are demoted to the lower courts after serving for 18 years (or for however long Congress dictates).

I  think this argument is both wrong on the law, and would create dangerous incentives for Congress if it became widely accepted. It would have the same sorts of problems as the "rotation" proposal endorsed by Sen. Bernie Sanders during the Democratic primaries this year. I criticized that idea here:

Instead of adding new justices to the Court, [under the rotation plan] Congress  could pass a law removing some of the current justices and transferring them to lower courts…. Then, the president can appoint new Supreme Court justices who will be more to his or her party's liking….

It isn't hard to see how this plan could easily lead to the same sort of spiraling dynamic as court packing. Imagine Sanders [or, now, Joe Biden] gets elected president in 2020 and—with the help of a Democratic Congress—sends Gorsuch and Kavanaugh to judicial purgatory. Perhaps they end up being consigned to a specially created federal court that considers weighty matters such as appeals of tickets issued to vehicles illegally parked on federal government property. Meanwhile, their Supreme Court seats get taken by newly appointed liberal justices….

How would the next GOP president and Congress respond? Most likely they would do the same thing to two (or more) liberal justices. Perhaps Elena Kagan and Sonia Sotomayor end up joining Gorsuch and Kavanaugh as parking ticket court judges. Meanwhile, two new conservative justices take their seats. Of course, the next Democratic president backed by a congressional majority would retaliate in kind, and so on….

These concerns apply with equal force to statutory term limits. If Congress can impose an 18 year term, they can also impose one that is 3 years or 6 years, and use that power to get rid of Supreme Court justices whose decisions they dislike. When the opposing party comes to power, they can make the terms still shorter, and thereby get rid of justices they dislike.

If Congress has broad authority to set judicial terms as they wish, they could even have asymmetric term lengths, so as to target justices they dislike for removal, while leaving others in place. For example, a Democratic Congress could enact a very short term limit that applies to justices confirmed in a year ending in 8, so as to eliminate Brett Kavanaugh (confirmed in 2018). Republicans could respond by targeting Democratic-appointed justices. And so on. Judicial review would thereby be neutered over time, as would also happen through repeated court-packing.

In sum, there is a great deal of merit to the idea of Supreme Court term limits. But it is far from a panacea for our problems, and would be very difficult to enact.

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  1. I strongly defer to the wisdom of the founding fathers, certainly over law professors making poorly thought out, even glib proposals to monkey with the constitution.

    1. Can anyone tell me why I’m not able to post comments. The site leaves a message stating I’ve already made that comment

      1. Sometimes they take a while to show up. If it says you’ve already made that comment, you probably have, and it’s just taking a while to display.

    2. I only ask that any constitutional amendment to SCOTUS term also include term limits for Congress members. Let’s say 12 years for Senators, 6 for Representatives.

  2. Here’s an easy way to end polarization. Stop picking judges who are interested in turning their views on what’s good for the country into constitutional rights. There’d be no fight over who gets to be a Supreme Court Justice if everyone didn’t know that some picks will wind up considering themselves as super-legislators who get to enact their policy preferences by creating constitutional rights.

    1. In other words, a Constitutional Amendment preventing Democrat Presidents nominating SCOTUS Justices. Good luck with that.

    2. Sounds great, how are you going to find nine people that think that, though? The vast majority of people, liberal and conservative, treat “unconstitutional” and “bad” as synonyms.

  3. The issue is coming up only because of what Republicans did in 2016 — and are doing now. Therefore I don’t see them changing the existing system which has allowed them such rewards.

    1. Still trying to spread the narrative that everything was all rainbows and sunshine and the Dems were picking daisies and minding their own business when the mean old republicans invented the concept of judicial partisanship unprovoked in the year 2016.

    2. Prior Democrat actions have no bearing. They occurred in a vacuum and have been memory-holed. They are pining for the fjords.

  4. The Senate should start to impeach Justices for their decisions. Nothing can stop that.

    1. Except that only the House of Representatives can impeach and removal from office requires a two-thirds vote of the Senate following impeachment.

      1. As we learned over the last couple of years, the inevitability of acquittal doesn’t mean the House won’t impeach. The House views impeachment by itself as an indelible mark of shame worth imposing for its own sake, as well as a “process is the punishment” move.

        1. Ah but think how a partisan black mark would motivate a justice for life? You’d better be careful what you wish for.

          1. The Justice Thomas scenario. They tried to prevent him from being confirmed, and only turned him into a bitter justice who didn’t give a damn who he outraged.

            1. Thomas is clearly quite bitter but he’s also a professional and his opinions don’t show it.

              1. No, but they do show that he doesn’t care who he outrages. I think that’s good. I don’t like judges letting the prospect of annoying people stop them from following legal logic.

    2. Impeachment shipped sailed with the failed Chase impeachment in 1804.

      Congress cannot even exercise its constitutional authority to strip jurisdiction. It just lets the courts seize more and more power.

      1. The impeachment of Chase made modern Justices avoid even the appearance of partisanship. They got PTSD by proxy from 1805, despite his acquittal by the Senate. It is time for a booster shot to put these little tyrants back in their place.

        Judicial review violates Article I Section1, giving “all” lawmaking power to the Congress. It should defend the constitution. Stop investigating judicial petty corruption, and trivial slips of protocol. Start impeaching for lawless rulings. Make an example of a lower court judge. The Justices will get the message for another 200 years.

      2. “the failed Chase impeachment in 1804.”

        Instead of hauling the murderer up before the judge, they hauled the judge up before the murderer.

    3. Impeaching for a decision? I hardly think that is cover in high crime and misdemeanors.

  5. I like the concept of staggered term limits. 18 years on the high court is long enough to leave a legacy but not too long to moulder. To reduce partisanship, I think we need to reduce the stakes of cases getting to the court. Why not create multiple Article III courts that are nationwide in jurisdiction below the Supreme Court that accept appeals on a subject matter basis. One of these “mini” supreme courts could answer questions on administrative law, while another could deal with alleged constitutional violations. That would allow more specialized judges to handle individual subjects. Plus, the sum of the mini courts could handle more cases, eliminating circuit splits faster. The supreme court could then restrict itself to cases where the mini courts clearly got things wrong, or president needs to be overridden (plus original jurisdiction).

    1. i can’t believe I misspelled “precedent.”

      1. Have you never done that before?

        1. It’s unprecedented.

  6. I find myself in the uncomfortable position of mostly agreeing with Prof Somin.

    I agree that fixed terms – eg 18 years – are not going to solve the political catfight. But they have merits regardless of the political stuff.

    In particular :

    (a) the ghoulish death watch stuff, and the associated risk that a Justice may hang on in a Franco like state, propped up by clerks – ie where cases may actually be decided by folk who have not been put on the court
    (b) the hunt for young Justices who might survive for another 30 years plus
    (c) and the consequent passing over of experienced judges who might be expected to arrive at death watch too quickly
    (d) the corruption of power (and a SCOTUS seat carries a lot of power) and the fact that the longer you have it, the greater the likelihood of succumbing to that corruption (always assuming that you did not arrive on the court already corrupt to the eyeballs – I do not, obviously, refer only to financial corruption, I include the temptation to legislate)

    In fact I’m not at all sure that 18 years isn’t too long. Maybe 12 is plenty.

  7. As I’ve pointed out before, the most straightforward way to get such an amendment passed, is for a party holding both the White house and Congress to propose it, and threaten to pack the Court itself if the opposing party doesn’t support it. Since refusing to support an amendment to prevent Court packing amounts to an open admission of intent to pack the Court, such threats would be appropriate.

    But this just closes off one possible abuse, it wouldn’t remotely make the composition of the Court less of a political fight. If anything, it might lead to more extreme measures on the part of fringe members of the party out of power on the court to open up seats.

    The real problem here is that the major parties now have disjoint conceptions of the role of judges. Literally, what each party views as the appropriate role of judges the other views as serious judicial malfeasance. There isn’t anymore any middle ground for potential justices to occupy. And this conflict is spreading down the food chain, already largely applies to the district courts.

    I don’t see this conflict going away any time soon, and no structural reform can paper over it, because it extends to what would be considered a “reform”.

    1. First paragraph is spot on. I think even a threat will be insufficient. The party in power will likely have to actually follow through on packing the court, and then offer an amendment walking back the pack.

      If de-politicizing the court is the goal, we need to resolve the underlying instability of the current nomination process. Part of that is by setting definite terms. The other part is by restoring executive primacy in the selection process. That mean no more “advise and consent of the senate.” The president picks someone and that’s that.

      “But what about checks and balances?” you say. Simple. The president must pick from a list of judges provided by the Senate. The names are not approved by the whole Senate. Instead, each state’s Senate Delegation submits one name, which must be agreed to by both senators. If the senators don’t agree the state does not get a name. Changes require both senators to agree, but the list starts new every term.

      This solution has the benefit of empowering individual senators, relative to the current setup, which increases its likelihood of passing.

      1. You are ignoring the fact that the current instability is a one sided problem.

        Only Republican nominated candidates face a questionable Senate vote.

        1. I disagree. Of the last three nominees to SCOTUS, Gorsuch sailed through, Kavanaugh had a knockdown-dragout, and Garland was denied a vote. That’s one questionable senate vote for each party, and one easy vote for republicans.

          The fact is in 2016 Republicans declared war over the court. Democrats will eventually respond in kind. The era of qualified nominees receiving confirmation on that basis alone is over. We must amend the appointment process to reflect that reality.

      2. Differently, alter the advise and consent clause to “and the Senate shall have 60 days to remove a newly seated Justice with a 3/4ths vote.”

        That allows the Senate to remove truly awful nominations, but everyone else gets on. Adjust the 3/4 number to wherever you think the right balance is.

  8. Wotta waste. The core fundamental problem is that government simply tries to create too damn many one-size-fits-all solutions to problems that are better handled by individuals and voluntary organizations in a free market. School curricula are one of the most obvious areas. But occupational licensing, victimless crimes, the list is endless.

    One-size-fits-all solutions fit almost nobody, and almost everybody screams bloody murder, for more repression, less paternalism, different kinds of paternalism, every variation under the sun. And courts are supposed to somehow smash these laws and regulations into some kind of order that offends fewer people. Forget rule of law — the end result, whether chosen by laws, men, or verdicts — is impossible.

    Things will continue like this until government shrinks enough that people can get on with their lives without Big Brother watching over the shoulder. Since that will never happen without a revolution, and since most people have far too many sunk costs in the status quo if revolution is the only other choice, things will gradually grind to a stifling paternalistic society, with very few innovations, and very little progress.

    Then some country will come to its senses, as Scandinavia did, and eat the stifled countries’ lunches.

    1. Or, in my Thought Plan B, real innovation and progress will shift to the Dark Web ruled by individualism and their voluntary spontaneous organizations, out of reach of government, leaving government to a stifled frozen economy which will remain more or less the same size, but will shrink compared to the Dark Web economy. Possibly the stifled government will eventually collapse, but by that time few will be doing anything more than assign a few day’s pay to tax robots, and its passing will be as remarked-upon as the loss of hitching posts or telegrams.

    2. Sounds like you yourself have a one-size-fits-all solution to every problem in US politics.

      Scandinavia is not known as a place with small government.

  9. Eighteen year term limits are fine. To further depoliticize the Court, require an 80% super-majority for Senate consent. That figure would be high enough to all but rule out a candidate with any history of political activism. Presidents would be stuck with weighing potential nominees on the basis of experience, collegiality, judicial temperament, and writing ability. Then invent some mechanism to require prompt consideration by the Senate, and an up or down vote of the entire Senate, and I suggest you would have all you need.

    1. Stephen,
      You’re dreaming. In the present political climate neither Scalia nor Ginsberg would ever have received 80 votes.

      All these ideas are dead on arrival because the two parties have essentially no overlap in political ideology. Once the power center disappeared the result of bitter ideological warfare was bound to breakout. And for the time being both parties actually prefer the structure of wings without a center,

    2. This is a recipe for anarchy. In times of light to moderate polarization it will work fine. But in times of heavy polarization, the party not in the presidency will prefer a vacancy to appointment. This will in turn lead to more polarization.

      Eventually there will be no supreme court.

      1. “Eventually there will be no supreme court.”

        And the problem is?

        1. It simply pushes the power down to the appellate courts, and the 9th circuit in particular.

    3. “any history of political activism”

      Nothing wrong with prior political involvement. We used to put governors and senators and other active politicians on the court. Marshall, Chase, Hughes for instance.

      Our current template for justices is too narrow and creates group think. Private college [usually Ivy], Ivy Law, clerk, Big Law, sometimes professor, circuit judge. NYC or DC suburbs now to even further narrow it.

      1. Not even ivy league, just Harvard or Yale.

        Also, typically Jewish or Catholic.

  10. I would add one tweak to the amendment: After the 18 year term is over, the Justice would continue to serve as a judge on one of the circuit courts or as a federal district judge. “Senior status” judges routinely fill in around the country, so I believe this would be relatively easy to implement in practice.

    One of the values of “life tenure” for Supreme Court Justices is that they have no real temptation to rule so as to increase their post-retirement income, in a manner similar to how those in Congress and the Executive Branch enjoy lucrative post-public service careers.

    Keep them employed as judges, just not on the Supreme Court.

  11. Before I went off Facebook, I asked those who believe in prayer to pray for what happened last week. If there is a God, he has masterful timing in answering prayer. Last was exquisite timing.

    1. Your god is a paltry, illusory, even silly thing.

      Maybe we’ll name the Supreme Court building after Justice Ginsburg. Come January, all you’ll be able to do is watch, cry, and comply.

  12. I agree with Professor Somin that a constitutional amendment would be required.

    The current system is that introduces a certain amount of randomness into our forecasts. We can’t predict exactly when a change of justices will occur. Judges won’t necessarily be replaced by one of similar ideology, because they might die during the administration of an opposing president.

    I want to suggest that this may be something of a benefit. If we could predict exactly when justices will retire, we could also predict the ideology of rhe court some time into the future. The current arrangement makes it much less predictable. We don’t know if the court will have a liberal or a conservative majority several years from now. And the justices don’t know that either. This, I would suggest, introduces some potential for moderating influence.

  13. I think we should put term limits in when the Dem’s have a 6-3 majority (if ever). But not until then.

  14. “Failure to confirm a justice by July 1 of a president’s first or third year should lead to a salary and benefits freeze for the president and all 100 senators, and they should be confined together until a nominee has been approved.”

    So, basically Trump gets to appoint whoever he wants?

    1. Hehe most presidents won’t sweat it.

    2. That is the dumbest of Calabresi’s suggestions.

  15. Increase to about 50-100 SCOTUS judges, give them 8 year terms, and split the cases randomly among them.

    All this stupid hero worship of people like RBG will go away, as will the ability of one or two judges to impose their ideology on the country.

  16. One thing you can say about Trump is he really knows how to #MindFuck his opponents. You have to admire his skill at doing that even if you don’t like him.

    Just take a look at Ilya here, and his acolytes. They never did have a firm grasp on reality, depravity will do that to a person, but they went completely unhinged four years ago simply because Trump was running for president.

    Can you imagine what they will be like if Trump is reelected?

    I truly am enjoying every minute of this.

    My website -> https://californiaopencarry.com/

    1. Enjoy it while you can, clinger.

      The culture war is going to accelerate next year. The trajectory — favoring the liberal-libertarian mainstream, shaping progress against the preferences of clingers — will not change, but the pace will become breathtaking. New justices, new senators, new states, new representatives, new Senate rules . . . it will be delightful.

    2. If he’s reelected there will be riots that make this summer look mild. And a big uptick in political assassinations, I expect.

  17. I really think there is a huge problem is supreme Court justices need to look ahead to their next career after being a justice. These are ambitious intellectually hungry people who aren’t going to want to sit on their couch. Do we want them thinking about their future as advocates or politicians? I doubt many will find being an appealete judge satisfying after being on the court. Also you don’t want to lose that ecperiencd.

    I propose we have senior supreme Court justices who don’t get a vote but get to attend conference, write opinions to persuaded their colleagues etc… Moreover, that dynamic increases the incentives to be collegial and offer a persuasive coherent position.

    Also if we get a constitutional amendment I think there are lots of uses we can put such justices to.

  18. You don’t need term limits, and this plan has problems of retirements and deaths-in-office anyway.

    Just keep the lifetime terms, and add-on “presidents appoint on the first and third years of their term”. The final size of the court will grow and shrink, but the drama over deaths and retirements will be muted because they’ll be disconnected from appointments.

    You probably would need some sort of “easing-in” bit, something like “for the next four terms, appoitnments are in the 3rd term only”, so this isn’t perceived as a power-grab by whoever is currently in office.

    For that matter, having a larger SCOTUS would also make each individual justice less important, which makes the fight in the senate less worth it.

  19. I would like to see term limits, but for Congress, not justices. This is one of the reforms the ConventionOfStates people want to enact.

    If we want to avoid these periodic “bluffing battles” where the Senate refuses to consider, or puts conditions on considering, a president’s nominee, then let’s amend the constitution so that a nominee who does not receive an up-or-down vote within 60 days of nomination is allowed to take his seat for one year — after which the president may nominate him again, or someone else.

    As for eliminating “polarizing” partisanship, that’s a harder problem. The law can’t exactly ban the un-called-for use of insults like nazi and racist, unless we want to expand “fighting words” doctrine to include them.

    1. a nominee who does not receive an up-or-down vote within 60 days of nomination is allowed to take his seat for one year

      That just puts all the power into the unchecked hands of the President.

      Moreover it’s pointless. SCOTUS can operate just as well with one Justice as with nine. Being without a Justice or two, or three, for a few years doesn’t matter at all.

      1. How’s that put unchecked power in the hands of the President? All the Senate has to do is down vote the nominee, and they’re out.

    2. I mean, we could always bring back dueling over matters of honor. If Cruz had dueled Trump over Trump’s insults to his wife and father, I imagine the country would be in a different state now, no?

  20. r: “the Senate would be forbidden from taking action whatsoever on any of its calendars,” proper English usage requires “the Senate would be forbidden to take action whatsoever on any of its calendars.”

  21. Works for me. How about term limits for Congress too? Biden is the perfect example of overstaying your welcome.

  22. I have advocated appointing one every two years (the historic average); this could be done by simple act of Congress. The biggest reason I see to oppose it is that it would take away an element of the Biparty’s ability to frighten us every four years (“The next President could get ninety-nine SC appointments! Give to our campaign!”).

    Such a rule need not be tied to term limits; if the number fluctuates, so what?

  23. I like this idea for many reasons. First you could fix the size and eliminate talk of court packing. Second you would get rid of this idea to appoint very young justices. RBG was smart, hardworking, and 60 years old when appointed to SCOTUS. That will not happen without a change to lifetime appointments. The founders vision of a lifetime appointment is not consistent with what we see today. The average time on the court is 16 years. This is much more likely what the founders expected. I would add that to an amendment that a 60 vote margin is required for confirmation. This would force the Senate back to looking at qualification rather than judicial philosophy.

  24. There is currently no problem with the system as delineated by the US Constitution. Seems to be working just like the founders wanted it.

    The issue I have with the Federal Courts in general is precedence and continuing to rule because a previous court did, even if that ruling was likely in error.

  25. Increasing life expectancy is being credited as part of the problem here, but I think it should be pointed out that in the past, it was not uncommon for justices to retire from the Court to do other things with their lives. Some justices settled in for life, others did not. What has changed that almost all now make a lifelong career of it unless they feel unable to continue due to age?

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