Supreme Court Justice Ruth Bader Ginsburg shows no signs of slowing down as she gets older, now having celebrated her 80th birthday. While battling through her illnesses, she has maintained her role not only as an active justice, but also as an active speaker and educator around the world. Her contributions support New York’s current proposal to raise the mandatory retirement age of state judges from 70 to 80.
The bill proposes to amend the state’s constitution to affect this change for many judges, including those on New York’s highest court, the Court of Appeals. Once the bill makes it through the state legislature, it will also require approval by voters. Similar legislative proposals to either raise or eliminate age retirement ages for state judges are currently under consideration in 16 states. More importantly, however, New York’s proposal should be an impetus for Connecticut to take similar measures to raise the retirement of its own judges from 70 to 80.
Approximately 33 states have age limits on judges’ service. Many states, including Connecticut, set the limit at 70, although Vermont seems to have recognized the value of older jurists, setting its limit at 90. The federal Constitution has no age limit. A federal judge can semi-retire at full pay. Federal law then allows for the appointment of a new “active” judge, but the senior status judge can still hear close to a full — if not a full or more than a full — caseload and remain in very active service to the system far beyond his or her 70th birthday.
The Connecticut Constitution has an age limit of 70, but judges thereafter can sit very actively, if they so choose, with many of the powers they had before they were 70, although at reduced pay. For example, retired justices of the Supreme Court and judges of the Appellate Court are eligible to sit — one per three-judge panel — on the Appellate Court at the call of the chief judge. In fact, over half of the appeals currently heard by the Appellate Court have a retired justice or judge on the panel, and the retired judges write their proportionate share of the court’s decisions.
Retired Superior Court judges, if certified each year by the chief justice as a judge trial referee, are eligible to hear any civil nonjury case and any other case — civil or criminal, jury or nonjury — with the consent of counsel. As a practical matter, any retired judge who wants to work practically full time will find any number of administrative or presiding judges eager to fill up that judge’s plate with civil non-jury trials.
Certainly there are down sides to higher age limits. They prevent younger judges from rising up. And, perhaps the most salient argument is that judges on the federal and state benches, who wield enormous influence and power, may suffer from age-related cognitive difficulties, but continue to serve with no monitoring system in place. This issue may present disastrous consequences for litigants. Whether there should be a monitoring system is a separate problem from mandatory retirement.
New York’s proposal has much merit to it and should be considered by Connecticut so that we no longer have to use an awkward work-around to keep our talented and experienced judges on the bench after age 70. Judges who are over 70 have a great deal to offer state judicial systems that are overburdened with cases and the costs of hearing them. They can help to mentor and teach younger judges, and they can continue to press for reforms of the judicial branch, which may require more time or effort to push through.
Certainly, if the federal bench is to be a guide, many of us can name judges who have continued to amaze us with stellar service and hundreds of pages of decisions in high-profile cases well into their 80s and even 90s. The same goes for Connecticut. Consider Judge Jack Weinstein in the Eastern District of New York and Judge Robert Sweet in the Southern District of New York. Both of those judges are still actively serving in a “senior status,” and they are actively influencing the content of the law. Finally, there is the elephant in the room: people are simply living longer. This development means that 30 is the new 20, 50 is the new 40, and yes, 80 is the new 70. Eighty may even be the new 60, depending on who you ask. A new mandatory retirement age may merely be a matter of evolution in this respect.
For these reasons, we support having Connecticut follow New York’s proposal to raise the mandatory retirement age for judges to 80. Or, better yet, let’s get started ahead of New York.•