The Volokh Conspiracy

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Decrepitude on the Bench

Decrepitude is not only a problem in the oval office.


A federal district court has denied Judge Pauline Newman's challenge to her suspension from the U.S. Court of Appeals for the Federal Circuit. The Circuit's Chief Judge, Kimberly Moore, suspended Judge Newman due to her alleged physical and cognitive impairment. Judge Newman is 97 and denies the allegations. Reuters reports she plans to appeal.

Whether or not Judge Newman is still fit for judicial service (and whether or not there are legal problems with how Chief Judge Moore has treated her), the episode highlights one potential problem with life tenure: Sometimes judges do not know when to quit.

Some years ago, historian David Garrow wrote an extensive law review article on the subject, "Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment," in the University of Chicago Law Review. It is a fascinating read. Here is a taste from the introduction:

Mental decrepitude and incapacity have troubled the United States Supreme Court from the 1790s to the 1990s. The history of the Court is replete with repeated instances of justices casting decisive votes or otherwise participating actively in the Court's work when their colleagues and/or families had serious doubts about their mental capacities. Contrary to conventional wisdom among legal scholars and historians, a thorough survey of Supreme Court historiography reveals that mental decrepitude has been an even more frequent problem on the twentieth-century Court than it was during the nineteenth. The historical evidence convincingly demonstrates that mental decrepitude among aging justices is a persistently recurring problem that merits serious attention. . . .

More than seventy years ago, former Justice and future Chief Justice Charles Evans Hughes emphasized publicly that "[i]t is extraordinary how reluctant aged judges are to retire and to give up their accustomed work."' Over the ensuing years little has changed. The United States Supreme Court since 1990 has featured four justices who continued serving after reaching the age of eighty: William J. Brennan, Jr., Thurgood Marshall, Harry A. Blackmun, and John Paul Stevens. Chief Justice Hughes was an early proponent of mandatory judicial retirement at age seventy-five, and he pointedly warned that "the importance in the Supreme Court of avoiding the risk of having judges who are unable properly to do their work and yet insist on remaining on the bench, is too great to permit chances to be taken." But no constitutional reform has occurred, and thus it remains undeniably true, as Chief Judge Richard A. Posner observed in 1995, that "[t]he judiciary is the nation's premier geriatric occupation."' A careful review of both Supreme Court Justices' aggregate biographies, and the little-remembered efforts to enact a corrective amendment, shows that the Court's history offers some powerfully important present-day lessons and reveals how both scholarly knowledge and conventional wisdom are woefully incomplete. Today the conclusion unfortunately remains, just as Charles Evans Hughes said in 1928, that "[t]he exigency to be thought of is not illness but decrepitude."

Garrow recommends a constitutional amendment forcing retirement at 75. He posits such an amendment might have been adopted in 1937 had Franklin Roosevelt been willing to accept such an alternative to his court-packing plan.

Some states have age limits for judges. In Ohio, for example, no individual can be appointed or elected to a judgeship once they reach 70 years old. There is no such limit in the federal courts.

Due to the lack of age limits, we expect our judges—and our justices in particular—to be old. Interestingly enough, this year we have a Presidential election in which both major-party presidential candidates are older than every member of the Supreme Court. This is quite remarkable (and may be without precedent).

We should be concerned about decrepitude on courts. We should also be concerned about it in the White House.