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FTC Marks 25 Years Since SCOTUS Decision Upholding Judicial Retirement Age

Yesterday (June 20) marked 25 years since the U.S. Supreme Court held in Gregory v. Ashcroft that Missouri’s mandatory retirement age for state court judges did not violate a federal age discrimination law or the U.S. Constitution – a decision with policy implications for organizations like Fix the Court that advocate for ending life tenure at the high court.

Judges Ellis Gregory, Jr., and Anthony Nugent, Jr., of Missouri, who were not inclined to step down once they turned 70, brought the suit, which the high court took after a similar case from Vermont yielded a different result at the circuit level. In her majority opinion, to which Justices Antonin Scalia and Anthony Kennedy signed on, Justice Sandra Day O’Connor wrote, “The people of Missouri have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age.”

FTC executive director Gabe Roth said: “If a mandatory retirement age were in place at the Supreme Court, we would more readily know when the justices would be leaving the bench, meaning the country would be less likely to experience the mind-numbing uncertainty and political gamesmanship that court-watchers and constitutional scholars experience at the end of each term – and especially in election years.”

In a rarely-mentioned twist, Justice Thurgood Marshall, then 82 and in failing physical and cognitive health, announced his retirement just seven days after Gregory was handed down. He was one of only two justices, the other being Harry Blackmun, to dissent from O’Connor’s Gregory opinion.

More importantly, Justice O’Connor noted in her opinion that Missouri had a rational basis for implementing a mandatory retirement age for its judges. Congress implementing a mandatory retirement age on the Supreme Court could theoretically pass the same “rational basis” test. After all, it’s an open secret that a number of justices have experienced cognitive decline while still on the bench.

Further, the Constitution gives Congress wide latitude to make laws about federal courts. Lawmakers appropriate money for the judiciary each year – the Supreme Court’s$76.7 million budget passed out of the House Appropriations Committee last week – and may even change the number of justices who sit on the high court. In the past, legislation that has aimed to increase court accountability has passed constitutional muster, as happened when the justices declined to hear a challenge to a 1978 law requiring federal judges to disclose their finances annually, which they do to this day – and may do this year as soon as Friday.

“The U.S. Supreme Court remains nearly alone among courts of last resort around the world in allowing its judges to serve for life. But with people living longer than ever and with justices feeling inclined to stay on the bench past their primes, life tenure at the high court is no longer rational,” Roth added.

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