WASHINGTON – As U.S. Supreme Court Justice John Paul Stevens is about to prove that 90 may be the new 70, at least for judges, state lawmakers are taking note.
Justice Stevens announced last week that he would retire when the current term ends. He will turn 90 on Tuesday. But Justice Stevens, who was 55 when he joined the Court in 1975, would not have had such a long career on the bench of the top court in New York or most other states. Most states requires judges to step down after age 70, according to the National Center for State Courts.
Twenty states now require retirement at age 70; four at 72; two at 74, and six at 75. Vermont is the only state with a mandatory retirement age of 90 for a state Supreme Court justice.
If applied to the U.S. Supreme Court, those states’ retirement rules would force from the bench not only Justice Stevens, but also Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer.
In 2009, the center reported, Kansas increased the age at which their justices must retire to 75 from 70, and South Dakota’s House of Representatives also approved an increase to 75 from 70.
Nine other states have recently considered or are considering legislation to increase or eliminate mandatory retirement, although none is apparently close to passage.
The states and the proposed changes in retirement age are: Alabama (from 70 to 72); Arizona (70 to 75); Massachusetts (70 to 76); New Hampshire (70 to none); New Jersey (70 to 75); New York (70 to none); Virginia (70 to 73); Washington (75 to none), and Wyoming (70 to none).
In New York, a proposed amendment (S6254) by Senator Thomas Duane, D-Manhattan, would repeal §§25(b) and 25(c) of the state Constitution. Those provisions provide for the retirement of state judges at the end of the year in which they turn 70, and establish a procedure for state Supreme Court justices to remain on the bench for up to three two-year terms if they can prove their physical and mental fitness to continue serving every two years.
An amendment to the state Constitution must be approved by two separately elected Legislatures and then passed by voters in a statewide referendum in order to go into effect.
In a memo defending his proposed amendment, Mr. Duane said that mandatory retirement for most judges sends a “terrible” message about the personal capabilities of people over 70.
Federal judges, who face no mandatory retirement limit, have often served well into their 80s with “no problems,” while the mandatory retirement rule for New York state judges have forced 19 Court of Appeals judges from the state’s high court in the past 50 years, according to Mr. Duane.
The measure has not emerged from committee and has no sponsor in the Assembly.
With then-Chief Judge Judith S. Kaye facing the prospect of mandatory retirement at the end of 2008, Governor Eliot Spitzer expressed concerns about the Court of Appeals’ retirement rules (NYLJ, March 21, 2007), but did not pursue a review before resigning as governor in 2008.
Justice Stevens’ career, of course, is not the trigger for the action in the state legislatures. William Raftery, a court research analyst at the center for state courts first noted what could be an emerging trend back in February.
Mr. Raftery suggested that the states have begun to re-examine mandatory retirement rules as the baby boomers age, life expectancies increase and more veteran and able judges are forced into retirement.