Trends 2013-2016

A list of monthly Trends articles for August 2013 through October 2016 has been compiled.  See full article archive.

Increasing or Repealing Mandatory Judicial Retirement Ages

William E. Raftery, Knowledge and Information Services Analyst, National Center for State Courts

There has been growing interest in increasing or repealing mandatory judicial retirement ages in the states. Voters, however, have not been keen on such measures.

With the average life expectancy of the U.S. population increasing and modern medicine allowing people to remain vital and active longer, many of the old concepts related to retirement have been brushed aside in recent years. This wave of change has not always, however, found its way into state judiciaries, which continue to contend in many instances with mandatory judicial retirement ages. Moreover, while state legislators have proven willing to consider increasing the ages or repealing them outright, voters have tended to reject such efforts at the ballot box.

The idea of a mandatory judicial retirement age dates back to at least the time of the American Revolution. Early state constitutions included such provisions; in 1789 Alexander Hamilton in Federalist #79 noted that New York had a mandatory judicial retirement age of 60 and argued against the practice for both the federal and state judiciaries. Today, they take on three different formulations.

  1. Mandatory loss or vacancy of office: a judge’s birthday party doubles as a retirement party. A few states offer some extensions (end of the month, end of the year, or end of the term), but most do not.
  2. Loss of retirement benefits: a judge is not automatically forced from office, but if they fail to leave some or all of their retirement benefits are forfeit.
  3. Electoral disqualifier: a person may serve out the term they are in, but their age makes them ineligible for reelection or reappointment.

Overall, 32 states plus the District of Columbia have a retirement age for appellate or general-jurisdiction court judges; most use 70 as the threshold, and the remaining states use either 72, 74, 75, or in the case of Vermont, 90. (Regarding limited-jurisdiction court judges, most state constitutions and statutes leave those ages up to the local appointing bodies or are simply silent on the matter.) The states are divided on the legislature’s ability to alter these ages, with some set by state constitution and others left to the legislature. Those states that have constitutional provisions regarding ages have found efforts to increase them much more difficult due, in large part, to the need to obtain voters’ approval.

Of all the proposals debated in the last two decades, most have focused on increasing rather than eliminating the ages—for example, moving from 70 to 72 or 75. Proponents argue four key points.

  1. Life expectancies and vitality are increasing, and the ages currently in place were set as many as two centuries ago.
  2. Officials of the other two branches are not similarly subject to mandatory retirement.
  3. The ages were often put in place to contend with judges who had aged into, as Alexander Hamilton put it, “inability.” Judicial conduct and disciplinary commissions in existence today can act to remove judges who were unable to carry out their duties.
  4. Even if such ages should be kept, 70 is far too low, and the age should be increased.

Opponents often focus on three areas.

  1. There is no evidence that mandatory judicial retirement harms the judiciary.
  2. Mandatory retirement ages help the judiciary by injecting new ideas and new judges into the mix.
  3. Legislators are disinclined to extend the existing terms for particular judges. As a result, many of these proposals have been amended to apply only to future judges. For example, in New Jersey a plan to increase the mandatory retirement age for judges was derailed when the measure included the supreme court. When the age increase was amended to apply only to lower-court judges, it moved out of committee.

Those changes to mandatory judicial retirement ages that have occurred recently have been in states with statute-based provisions, such as Virginia (2015) and Indiana (2011, trial courts only). Those efforts that required constitutional amendments, and therefore public approval, have appeared on ballots 11 times in 9 states since 1995 and almost all have failed: Arizona (2012), Louisiana (1995 and 2014), Hawaii (2006 and 2014), New York (2013), and Ohio (2011). Additionally, Hawaii voters in 2012 rejected an effort to permit judges forced out due to mandatory retirement to be recalled into service. The 2012 Arizona proposal is notable for its linkage to other topics. Often, legislators recognizing judges want to have the increase in age will attach it to other provisions, which the judiciary may or may not favor. In the case of Arizona, the 2012 proposition also included giving the governor more control over the state’s merit-selection commissions.

Of the states that have seen successful efforts, these have been limited. Aside from Vermont (2002), the only time such efforts have succeeded has been in off-year elections and then not to increase or repeal the ages but to let judges serve out their terms (Louisiana in 2003 and Texas in 2007) or until the end of the year (Pennsylvania in 2001). This year will perhaps change this trend; voters in Pennsylvania (April 2016) will vote on a plan to increase that state’s retirement age from the end of the year in which a judge reaches 75, up from end of the year in which a judge reaches 70. Oregon voters will decide November 2016 on an outright repeal of that state’s retirement age.

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.