The Age Old Question

Justices of the U.S. Supreme Court pose for formal group photo in the East Conference Room in Washington

How old is too old? Not as in, are you too old to still go out for Halloween? But as in: when should someone hang it up? As we continue to extend lifespans, and as the looming economic challenges with social security keep growing, organizations and governments need to deal with the issue of age and support.

In the US, Canada, and many other countries, mandatory retirement was outlawed many years ago, although in the United Kingdom, an employer can eliminate any employee over the age of 65 without reason. Legal petitions to this law have failed in recent years. However, even in the US, certain professions do mandate a retirement age. For instance, airline pilots must retire at 65; air traffic controllers at 56 with some exceptions; and several states have placed mandatory retirement on supreme court justices and other judges. We will return to this specific issue later.

Without doubt, retirement age is a very complex issue because it begs the question of when someone remains competent, at least cognitively, to skillfully do their job. The answer, of course, is: it depends. Some people are incredibly competent in their 80s and even 90s. Others are less fortunate in that they have either cognitive degeneration or physical ailments that make working life more difficult, if not impossible. We are what we are through our DNA, lifestyle choices, and things that just happen to us beyond our control. Let us not forget that many people want to retire, and for some the earlier the better. Others choose to work longer because they enjoy their occupation. Still others continue to work because they cannot afford to do otherwise. This will be an increasing challenge as people live longer, America gets grayer, and people are less prepared, financially, for retirement of any kind.

In higher education, institutions face a challenge because some faculty members hang on for a very, very long time. The value proposition of keeping a post-retirement age professor depends on the institution and the individual, and I’ve seen in many cases where faculty members in their late 70s and on are still being paid at the top scale. The upside is that many of these individuals are exceedingly knowledgeable and welcomed by the institution and students. There is value added. Antithetically, other individuals are less productive and less welcomed, essentially taking space that a younger Ph.D. candidate could have at a fraction of the cost. Ask any recent Ph.D. who wishes to be an academic what it is like getting a job out there. It is a very tough market.

As mentioned, some occupations have mandatory retirements. The question is, should there be more occupations that have mandatory retirements? Let us take the issue of President of the United States, for instance. This presidential election will feature two candidates who are beyond traditional retirement age. Donald Trump turned 70 in June and Hillary Clinton turns 69 in October. If either are elected and manage a two-term presidency, they would be 78 and 77 years of age, respectively, when they leave office. Is this an issue? I think it could be. POTUS 45 only needs to look back to POTUS 40, Ronald Reagan, to see the downside of not having an age limit for presidents. When Reagan was elected president in 1980, he was, and remains, the oldest president ever at 69-years old. Clinton could tie him and Trump would beat him. Reagan was diagnosed with Alzheimer’s disease in 1994, five years after he left office in 1989. However, he was showing signs of the disease as early as his reelection campaign in 1984. According to his son, Ron Jr., “There was just something that was off. I couldn’t quite put my finger on it.” It was first noticed that his speech pattern was different. Then he needed notecards to make standard phone calls to people from the Oval Office. There has been discussion about how this impacted the presidency, but we’ll never really know. When Reagan ran for office, he said that he would step down if doctors suggested that he was unfit for office. Well, he was likely unfit for office during his section term. But because he was undiagnosed, and because any slippage was surely held close and confidential, he never stepped down.

About two decades ago, I met with some congressional colleagues of mine. The talk turned to older members of congress, especially about one particular members who would be found wandering the halls and not being able to find his way back to his office. There were many stories of former Senator Strom Thurmond having similar issues. Thurmond was 100 when he left office and died six months later. Democrat Robert Byrd of West Virginia died at 92 years of age. He was still in the Senate.

As stated, several states have mandatory age limits for supreme court justices and judges, but the US Supreme Court does not have a similar statute. In fact, the actual language of the Court says that justices “shall hold their offices during good behavior,” meaning that they hold their jobs for life unless impeached or resigned. Two sitting justices, Anthony Kennedy and Ruth Bader Ginsburg, are 80 and 83-years of age, respectively, and Stephen Breyer is 78-years old. The Chief Justice, John Roberts, is a youthful 61 and the newest justice, Elena Kagan, is the youngest at 56. The three others are in their 60s. By the way, Antonin Scalia, who died earlier this year, died one month before his 80th birthday.

It has been standard practice to nominate justices in their 50s or 60s to the Court, as it is expected they bring a career of wisdom and experience to the court. The oldest justice ever appointed to the Court was 65 years of age (Horace Lurton), and Oliver Wendell Homes was the oldest ever to serve (90-years old). For interest sake, William O. Douglas served the longest term of any justice, from 1939 to 1975. That’s a lot of seat time.

But when is a Justice of the Supreme Court too old to serve? When does senility or other forced begin to diminish the cognitive ability of the Court?

Again, it is difficult to say. However, for Supreme Court justices and members of congress, and arguably any elected member, I think there should be an upper age level for protection of the offices they serve and the citizens of the country. My number would be 70-years of age, but I think 75-years would be more palatable in a vote, considering that Congress, itself, has an average age of 61 years of age (see the info chart below).

As we know, the timing of a justice to step down from the Court is a supreme (sorry for the pun) political issue. Justices have been known to over-stay their time on the court with hope that a new president of their particular persuasion can be elected to office and nominate their replacement. Currently, the Supreme Court is one justice short with the passing of Justice Scalia, and the GOP-controlled House of Representatives has refused to proceed with President Obama’s nomination of Merrick Garland due to the election. Garland is a moderate judge who, under normal conditions, would probably be welcomed by Republicans. Now the GOP has to face the reality that if Ms. Clinton becomes the President Elect on November 8, she will likely back-burner Garland and nominate a much more liberal nominee to the 115th Congress in January 2017.

If there was a mandatory age of retirement for justices, then the addition of new nominees would, to some degree, be less political as they would happen when age happens, not when politicians want.

 

Click on graphic to go to webpage:

congress_age

 

 

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4 Responses to The Age Old Question

  1. Robert W Tucker says:

    While this discussion explores an important topic — age related decline in intellectual competence while serving in important public roles — it is based on the wrong metric. A casual examination of the correlation between biological age and chronological age suggests that the focus should be on the former. At age 65, a 15 year difference is common. The history of public service is full of individuals who overstayed their ability to serve while former president Carter was intellectually astute until recently undergoing treatment for brain cancer. Imposing a chronological age criterion subjects individuals to statistical thresholds, which is arguably unfair. On the other hand, biological age is relatively easy to determine within limits that are far more accurate than chronological age.

    • Thanks for the comment. I do not think chronological age is unfair. I think there comes a time that we let some one else have a turn on the carousel, and I think we can use age as the criterion, because there is no other decent test that can used to make that decision. If Ginsberg, for instance, takes a cognitive test that reports her fine, but somehow, the week following she begins to showcase some signs, there is no systematic process to weed her out of the system. It would wait for the next test, which, when would that happen? To be truthful, there is no such test. So we only know the cognitive capacity of justices from what we hear them say (not from what they write, because they don’t write: their staff do. So, it has to be age because that IS the only fair way to do it. I think it is MORE than fair to push people off the bench, out of Congress, out of the White House at 75-years of age. Does someone really need to be a representative for 50 years? Or a justice for 30 years? It’s a big pool out there; I think our system is better by changing the players way more often than we do.

      While we are at it, let us also look at four-year terms for members of the House. The two year cycle is too quick, not allowing freshman the chance to learn much.

      • Robert W Tucker says:

        Your response introduces two related considerations as justifications for your position. These considerations might be summarized as “term limits are beneficial,” and “the older should make room for the qualified younger.” Both of these considerations have merit and would benefit from further public policy debate.

        My point was limited to critiquing the idea that we should employ chronological age rather than biological age as a criterion when we decide when public figures should be required to retire. I will make one comment on the term limits issue but a few points should be made with respect to which “age” criterion is the most scientifically sound and therefore should be employed when making retirement age decisions.

        – First, this discussion takes place in a context in which the span between the end of a competent life and death is declining. Every scientifically based expectation is that it will continue to decline as we learn more about how to care for others and ourselves. The same evidentiary bases suggest that the human life span will reach 100 or more years in the foreseeable future. To this point, we have already seen how our increased lifespans are upsetting governmental structures based on biologically based retirement ages that were appropriate in the 1940’s and 1950’s. Social Security is perhaps the best example. Simply put, indexing on chronological age is indexing on an increasingly weak proxy measure of the desired attributes. Basing retirement on biological age because it is easy and less controversial is a weak justification.

        – Second, the claim that we cannot predict the future for any individual is correct, albeit for all ages. (Getting hit by a truck comes to mind.) The implication that we cannot model biological age and predict a material decline in cognitive competence is not correct. A more correct statement is that we are not socializing such models for a variety of reasons, some good, and some not so good. I know neurologists and others who have developed models that integrate genetic structure with epigenetic protein markers, blood lipids and inflammation markers, BMI, and lifestyle indices (diet, exercise, stress) to predict with very good accuracy whether someone will develop AD or similar cognitive incapacitation over a defined period of time. How good? Good enough to surpass the predictive variance accounted for by chronological age in the age ranges we are discussing. The science is here. The public policy positions are not.

        – As present, we accept age discrimination on both ends of the spectrum. Most public offices define a minimum age and many define a maximum age. Perhaps there are fewer constraints on the upper limit because we have always recognized considerable variation in competence among older people. In defining a minimum age, I suspect that our ancestors were primarily concerned with emotional maturity, which is another construct that we can measure today with considerable accuracy.

        – Based on current evidence, if we advocate a particular retirement age as a matter of public policy, chronological age was always a crude metric that will become increasingly inaccurate with the advancement of science.

        Term Limits & Work History
        For many years, I was a strong advocate of term limits for legislators. To a lesser extent, I advocated for the viability of presidential candidates who had never served in any public office.

        I began to change my mind as I watched the impact of legislative term limits play out in the California Legislature. It was a mess that can only be described as a march of the incompetent. Since this is clearly a different topic, I will summarize my current position without argument. I have concluded that the affairs of governance in modern society are too complex for amateurs or even those possessing intermediate levels of knowledge and competence. In a presidential candidate, I would prefer someone who successfully served in roles including city council, mayor, state legislator, governor, and US legislator. For those who think that a successful CEO would make a good president, I would recommend a course in US history. We have elected only one highly successful businessperson to the presidency. His term in office was unremarkable at best. The US government is not and cannot be successfully run like a private sector corporation.

  2. Your argument is very well written. Thanks for taking the time. With regard to term limits, I do believe in term limits, but not the way they have been utilized in recent times. If you remember the GOP members from 1994 who pushed for term limits. Interesting: they didn’t win that fight, and they didn’t give up their seats, either. The point is that a short term limit can hurt a democracy by not allowing a maturation process to happen for the member. It can take several terms to “find your way around” congress. But I think that perhaps 3-4 Senate terms and 4-6 House terms sounds like a commendable idea. I do not think we should have “lifers” in publicly-elected offices. There is a time to go back and, dare I say, do something useful.

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