Lisa5201/Nontawat Thongsibsong/Getty Images; Jenny Chang-Rodriguez/Insider
- Lifetime tenures are making the federal judiciary older than ever — the median age is 68.
- Traditionally averse to outside oversight, the judiciary handles age-related issues internally.
- Many states have mandatory retirement ages, but the federal bench has few tools to push out judges.
- Read more from Insider's "Red, White, and Gray" series.
After several years on the federal trial court in Manhattan, Shira Scheindlin began noticing signs that some of her senior colleagues were losing sharpness in their old age. She wasn't the only one.
And so, in her early 50s, Scheindlin found herself making a pact with two of her fellow judges: They would tell one another if they felt it was time for one of them to retire.
"I had seen too many judges stay too long," Scheindlin said. "It's a problem. It's just a problem. Some judges get too old to do it well."
Across the federal courts, other judges have quietly struck up similar ways to initiate retirement conversations if a colleague's sharpness dulls or competency wanes. The informal, if imperfect, arrangements reflect an awareness that age can affect the performance of federal judges, whose lifetime tenures come with the pitfall of growing doddery to the detriment not only to their own legacies but also to the functioning of the legal system and those subjected to it.
The Constitution conferred lifetime appointments on federal judges, including the justices of the Supreme Court, to shield the judiciary from political pressures of the day. But with lengthening lifespans, that bulwark for judicial independence has increasingly presented the risk of judges remaining in robes well past common retirement age and presiding over cases with diminished mental capacity or physical health.
While keenly aware of that risk, the court system has few tools — aside from gentle persuasion — to address those seen as having lost a step in old age, according to numerous current and former federal judges and other legal experts.
In interviews, several current and former judges said lifetime tenures came with considerable upside. On the whole, they said, lifetime tenures preserve the experience and expertise of judges who might otherwise be forced out prematurely by a mandatory retirement date.
"People age differently," Scheindlin said. "Some judges are 95 years old and they're terrific, but a whole bunch of others at 75 or more are not so terrific. It's hard to have one age cutoff when some people are fine in their 80s or 90s and others aren't."
But judges wield immense power, and the diminished capacity of any one can undermine the legitimacy and efficiency of the court system.
In criminal cases, they're tasked with ensuring a fair trial and, in the event of a guilty verdict, often hold the liberty of a convicted defendant in their hands. In other cases, judges are tasked with resolving high-stakes, costly private disputes. They oversee challenges to controversial government policies involving environmental protection, workers' rights, immigration, and healthcare.
"You have this dichotomy: There's absolute value to having older judges because of their breadth of experience," said Judge Frederic Block of the federal trial court in Brooklyn, New York, who at age 88 described himself as "very blessed" and in "great shape."
But, he added, "I do think there is this issue."
"For an attorney or a client," he said, "when you see a 99-year-old judge sitting, it adds — automatically — an X-factor into the case."
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A cautionary tale
In nearly four decades on the federal bench, Richard Posner won renown as a prolific, widely cited judge who brought a brilliant legal mind and vivid writing style to the US Court of Appeals for the 7th Circuit.
Such was his aura that — apart from his day job — Posner wrote or coauthored dozens of books on judging, including a memoir the Harvard University Press published in 2013.
Posner had planned to stay on the bench until age 80, which he believed was the upper limit for federal judges. But in 2017 he retired at age 78, citing "difficulty" with colleagues over the treatment of so-called pro se litigants who represent themselves in legal disputes.
His retirement stunned the legal world, bringing an abrupt end to a 36-year career on the bench. Soon, though, even his longtime admirers quietly wondered whether he had stayed too long.
Posner soon helped found a center devoted to supporting pro se litigants.
But his namesake legal organization — the Posner Center of Justice for Pro Se's — folded within a year of its founding. And in litigation over unpaid wages at the organization, Posner disclosed through his lawyer that he received a "confirmed diagnosis of Alzheimer's disease" about six months after his retirement, Reuters reported.
It was a painful end to a storied career — and, for some, a cautionary tale of a lifetime-tenured judge who may not have known when to quit.
"No one can force a federal judge to retire, really," said David Lat, a former clerk on the US Court of Appeals for the 9th Circuit who is the author of "Original Jurisdiction," a newsletter covering legal issues. "The challenge, though, is that there are many excellent judges who are well into their 70s or 80s or beyond, but there are also some older judges who are not so great. For every Ruth Bader Ginsburg, you also have some judges who probably should have left the bench years ago."
Caron Creighton/AP
'The Notorious RBG'
It is the rare judge who ascends to pop-icon status. Ginsburg reached it — in her ninth decade of life.
Her fiery dissents earned her the nickname "The Notorious RBG," a moniker inspired by the late rapper Notorious B.I.G.
A night owl, she was known to pore over decisions until 3 a.m. She inspired films and books.
And she hit the gym. Her routine drew such attention that, with Ginsburg's encouragement, her trainer published a manual with illustrations of the justice performing planks and push-ups.
But her mental and physical tenacity into old age didn't shield her from criticism that she remained on the bench too long.
Despite two bouts of cancer — in 1999 and 2009 — and pleas from liberals, Ginsburg declined to retire during the Obama administration and open a Supreme Court seat for a younger, Democratic-appointed justice. That decision would come to expose the political consequences of a judge continuing to serve through old age — and serious illness — and dying while on the federal bench.
In September 2020, Ginsburg died at age 87 while still serving on the high court. She was nearly two decades older than the median age — 68 — for all federal judges, according to an Insider analysis.
Her death opened a seat for President Donald Trump to fill, and the Republican-controlled Senate confirmed Trump's nominee, Amy Coney Barrett, 39 days after Ginsburg's death.
The rapid sequence of events denied the Democrat Joe Biden, who'd go on to win the presidency in November, an opportunity to nominate another liberal to the Supreme Court and temper the court's ideological balance.
In the eyes of many liberal admirers, Ginsburg's decision not to step down earlier tarnished her legacy and opened the door to conservatives consolidating what's now a 6-3 majority on the Supreme Court.
"That was the biggest consequence, and I think a lot of people who admire her on the left would say it definitely mars her legacy somewhat," Lat said. "It's really what led to Justice Barrett joining the court and, ultimately, the overruling of Roe."
AP Photo/Alex Brandon
An imperfect system
At the federal level, the question of mandatory retirement or lifetime tenure has been the subject of debate dating back to the late 18th century.
In "Federalist 79," Alexander Hamilton defended the need for "permanency in office" for judges, considering "how few there are who outlive the season of intellectual vigor."
More than a century later, in the 1920s, future Chief Justice Charles Evans Hughes argued for a mandatory retirement age. He cautioned 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."
Congress has tried — and failed — to introduce a similar age cutoff to the federal courts. In 1954, the Senate passed a resolution proposing a constitutional amendment that'd require retirement at age 75 for federal judges.
The federal judiciary has proved averse to outside oversight.
In a 2021 year-end report, Chief Justice John Roberts addressed the need for the judiciary to "manage its internal affairs, both to promote informed administration and to ensure independence of the Branch."
Congress can impeach federal judges, but it has hardly ever done so. As a Brennan Center for Justice study noted in 2018, the impeachment of federal judges "is rare, and removal is rarer still."
In 2010, the Senate voted to convict Thomas Porteous, then a federal judge in New Orleans, after the House impeached him on allegations of bribery and making false statements. Other judges have resigned in the face of threatened impeachment and removal from their lifetime appointments, but such situations are exceptional across US history.
That has left it largely up to the judiciary to self-police. But with age-related loss of cognition, it faces an issue that is difficult to detect and sensitive to address. The instinct of self-policing leaves the court system relying largely on itself — in the form of the buddy systems, for instance — to flag judges whose competency comes into question.
But it can be difficult for judges, after years of working together, to act on those informal arrangements and candidly broach the subject of age and retirement.
"It's easier to say that and set it up than to do it," said Arthur Hellman, a law professor at the University of Pittsburgh who is an expert on the federal judiciary. "It's a helpful thing to have, but it's not something you can rely on to catch people early enough."
Hellman added that the informal arrangements struck up across the judiciary were inherently private, leaving it unclear when they failed to catch judges in time.
"There's so much that goes on that we don't know about," Hellman said. "Certainly, when the system works through these informal means, you just never know that a failing judge has been eased out of office and is not deciding cases anymore. There's no formal record that it happened, but it did happen, and the litigants and the system are better off for it."
For Scheindlin, the retirement pact proved unnecessary. Eager for a new challenge and to leave at the top of her game, Scheindlin retired in 2016 at age 70 and returned to private practice.
Scheindlin said she was mindful that, with age-related issues, "one never knows when that might happen and then it might be too late to recognize the problem."
Explaining her decision to leave the judiciary for a "second act," Scheindlin wrote in an American Bar Association journal that she "did not want to stay past my prime or preside over cases when I could no longer do my very best."
"I saw some judges becoming unfit for the pressures and burdens of the difficult dockets they managed, and I heard the discontent of the lawyers when those judges were assigned to their case," she wrote. "I heard lawyers say, 'He was once so great … but no longer' or 'She was so smart … but is starting to lose it.'"
Kent Nishimura / Los Angeles Times via Getty Images
A whispered sense
At a conference in Washington, DC, last month, federal judges were thrust into a delicate exercise.
The Federal Judicial Center, an education and research agency for the federal courts, had convened the training for judges across the US. For one session, the judges received one of two roles: chief judge of a court and an elderly colleague who was beginning to slow down.
The judge in the chief's role was tasked with approaching the aging colleague for a difficult discussion.
"It's definitely on the judiciary's mind," a person familiar with the conference told Insider.
Indeed, in recent years, discussions of age in the judiciary have picked up as some activists have called for changes to the Supreme Court and more broadly for judicial term limits or a mandatory retirement age.
In the face of those calls, Biden pledged on the 2020 campaign trail to study the issue.
The commission, in a nearly 300-page report, noted that "life tenure is virtually unique to the US federal judiciary" and that "states have decidedly moved away from life tenure for justices of their highest courts."
According to the report, 31 states and Washington, DC, have some form of mandatory retirement for their judges. A majority of those states set the mandatory retirement age at 70; Vermont allows judges to remain on the state bench until 90.
A recent poll by Insider and Morning Consult found that 71% of 2,210 respondents said the federal judiciary should have a mandatory retirement age. Of that pool, nearly two-thirds said the judiciary should "definitely" have an age limit, with the rest answering that it should "probably" have one.
"The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court justices," the report said.
The commission stopped short of making a recommendation but explored setting term limits through either a statute or a constitutional amendment.
Thomas B. Griffith, a retired federal judge who served on the commission, told Insider that a constitutional amendment was the only realistic option for setting a mandatory retirement age.
"It would take a constitutional amendment to change that, and that's unlikely to happen," he said. "But even if you could find a mechanism to enforce term limits, I think it would take something like 50 years to implement."
Nancy Gertner, a former federal judge in Massachusetts who served on the commission, said she saw several colleagues during her judicial career who grew unfit to sit on the federal bench but declined to step down.
Gertner said that while there were procedures for judges and staff members to raise concerns about a judge, they were not used enough.
"It is extraordinarily delicate to initiate that kind of process," she said. "It's very difficult for one judge to do that with respect to another judge."
At the time of Posner's sudden retirement, Judge Diane Wood served as chief judge of the US Court of Appeals for the 7th Circuit. In a recent podcast, Wood weighed in on a proposal in Congress to cap Supreme Court justices' terms at 18 years, calling it "intriguing."
Wood said she would "favor something like" an age limit for judges set at 75 to 80, noting the risk of aging jurists developing dementia or other impairing conditions.
"The people who wrote the Constitution didn't think that everybody was going to live to 90 and keep on serving as a judge because life expectancies just weren't that high," Wood told David Levi, who hosts the podcast and is the director of Duke Law School's Bolch Judicial Institute.
Hellman, the University of Pittsburgh law professor, said the key for any such procedure was to alert the chief judge of a particular court.
"That faces a number of obstacles," he said, because those with inside information — secretaries and law clerks — may fear reprisal or have long-standing loyalty to the judge in question.
"The essence of the problem is that you have, on the one hand, the chief judge who has the responsibility and, on the other, the people with the information who, for a variety of reasons, might be reluctant to say anything," Hellman said.
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In defense of seniority
In 1992, Judge Jack Weinstein was in his early 70s when he wrote a letter to former Justice Thurgood Marshall.
Just a year earlier, Marshall had resigned from the Supreme Court, and Weinstein wanted his advice about whether to take senior status — a form of semiretirement for judges that allows them to take a reduced caseload.
"Now, as an old man, I have to decide whether to take senior status or keep fighting the good fight as an active judge," Weinstein wrote in the letter, a photograph of which was provided to Insider. "I'm inclined to do the fighting."
Marshall responded that the decision of whether to take senior status was "absolutely a personal one and there is no help anybody can give."
"I have for myself narrowed it down to the doctor, my wife, and me," he wrote. "Together we went over all the conditions year after year after year and eventually the doctor persuaded us that it was time to retire and I retired."
Weinstein would serve on the federal trial court in Brooklyn for another three decades and maintain a nearly full docket well into his 90s. In his chambers, he kept a framed copy of his correspondence with Marshall on the wall.
For Scheindlin, the former federal judge in Manhattan, Weinstein was an example of an older judge who was "terrific to his last day."
Block had similar praise for Weinstein, his former colleague on the US District Court for the Eastern District of New York. Like Weinstein, Block said he's mindful, at 88, of what his age meant for his continued service on the federal court in Brooklyn.
"It's a year-to-year proposition now, when you reach the age I'm at," he told Insider. "And there's no magic formula. You need common sense and an ability to assess your own ability to function."
But Block said he's "blessed with good health" and felt fully equipped to write "good books and write good decisions."
In one of those books, "Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge," Block directly posed the question: "What happens … if a judge starts to lose it?"
Block invoked Judge Wesley Brown, who served on the federal trial court in Kansas until he died at age 104. In his 2012 book, Block said Brown's presence on the bench was "seen as a daily miracle."
A tube under his nose fed oxygen, Block wrote, and Brown was known to warn lawyers preparing for long trials that he might not survive to finish them.
"At this age," Brown would tell them, "I'm not even buying green bananas."
But, Block wrote, "the consensus is that Judge Brown remained sharp and capable."
Block came out against term limits in the book and said he hoped, if his "faculties start to seriously fade," that the decision of whether to retire would be left to him.
"At the present time, however, I feel that I can do a better job at my age than at any other time in my judicial career. If we had term limits, Judge Weinstein would no longer be on the bench, nor would four other EDNY colleagues who are outstanding jurists in their late 80s," Block wrote in 2012.
A decade later, Block told Insider he's hitting his stride in his ninth decade of life — and not just because of his decades of experience on the bench.
"You reach the point, because we have a lifetime appointment and because we've been on the bench for many years, you feel psychologically freed up. You really are more inclined to do the right thing without having any thoughts in your head about being reversed, about whether the public will like what you do," Block said. "It frees you up, because you have the security and maturity now to feel like you can do that."
"I do feel within my own bones that I've reached the stage where I don't have any restrictions psychologically or otherwise to reach the decision that is the right decision," he added.
But his retirement, namely the timing of it, remains on his mind.
"I'm definitely mindful about it, there's no question about it," he said. "I talk to my wife about it. I think I will probably make the right decision at the right time. When that will be, I don't know."
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