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Noted Supreme Court scholar David Garrow argues that the Supreme Court, and Chief Justice John Roberts specifically, should take action to address the increasing age of judges. He raises an important problem: the Supreme Court should not be a comfortable retirement home. Garrow proposes that judges undergo mental health checkups and that new judges agree to a retirement age.
But I do not think there is any way that a law could do constitutionally. The Constitution does not permit removal of a judge from office except in limited circumstances, and only through the process of impeachment. Article III, Section 1 of the Constitution states that “the judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.”
While the Constitution does not define “good behavior,” our historical practice has. Judges who have committed violations of federal criminal law, such as Judge Walter Nixon, can be impeached. During the Jefferson administration, Congress impeached and removed a judge who was apparently a drunkard on the bench (and this before the day of the breathalyzer). But Jefferson’s effort to impeach Justice Samuel Chase, on the claim that he was injudicious in his behavior (but was really a not-so-veiled effort to remove a Federalist from the bench), failed to win conviction in the Senate. I believe that age alone could not be grounds for impeachment and removal, and perhaps not even mental illness, unless it truly incapacitated a judge from the job.
An arbitrary age should not be a disqualification to serve on the bench. I would be the first to say that there are many lawyers who are in their 40s and 50s who should not be judges, and that there are many judges on the bench in their 70s and even 80s who do a fine job. Maybe 90 is the new 70.
That said, our states have improved on the federal system by rejecting the idea of a lifetime appointment to the bench. Some states have fixed terms and limited renewal for judges. Rather than age, the principle should be that no judge should serve longer than a fixed number of years, perhaps 12 or 15. This would require a constitutional amendment. Even though judges could voluntarily promise in their confirmation hearings to quit after a certain number of years, there is no constitutional way for other judges, Congress, or the President to force them to keep it.Published in