December 14, 2023
By Bill Raftery
With an expected 96% increase in the number of people over the age of 65 remaining active in the U.S. workforce by 2023, there has been a reexamination of a centuries-old practice of requiring judges to retire at a set age. Such mandatory retirement ages in the U.S. date back at least to the 1700s. In 1789 Alexander Hamilton noted in Federalist No. 79 that New York had a mandatory judicial retirement age of 60. Hamilton argued against the practice of a mandatory retirement age for both the federal and state judiciaries. Setting an arbitrary “criterion of inability” as Hamilton noted was something few approved of, but it was considered superior to the alternative: legislative investigations that must forever be “vague and dangerous.”
Today such investigations regarding a judge’s “inability” are managed by judicial disciplinary and conduct commissions. Moreover, the U.S. Supreme Court held that the continued use of mandatory judicial retirement ages in Missouri did not violate either the Age Discrimination in Employment Act (ADEA) or the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution given that “[t]he Missouri people rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal from office sufficiently inadequate, that they will require all judges to step aside at that age.”
While most states maintain mandatory retirement ages for at least some of their judges, those ages vary widely, as reflected in a data visualization produced as part of NCSC’s examination of judicial retirement systems within NCSC’s Judicial Salary Tracker. Looking at appellate courts, 32 states plus the District of Columbia impose a mandatory retirement age, with most (18) setting the age at 70. Trial courts are more lenient, with several states setting either a higher mandatory retirement age or no age at all for at least some of their trial judges. Moreover, some of these age restrictions allow judges to finish out the year or the term in which they reach the specified retirement age.
These age restrictions can and have over the centuries changed due to laws passed by state legislatures, constitutional amendments adopted by voters, or both. In the last decade, voters and legislatures in 9 states have voted on whether to increase these ages. Voters in Florida (2018) and Pennsylvania (2016) and Virginia’s legislature (the retirement age is set by statute and changed in 2015 and 2016) approved increases. Voters rejected the attempts in Hawaii (2014), Louisiana (2014), New York (2013), Oregon (2016), Texas (2023), and Wyoming (2022). New Hampshire voters will decide in November 2024 whether to raise the mandatory retirement age for judges from 70 to 75.
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