Are State Judicial Mandatory Retirement Ages Still Permissible?
Are State Judicial Mandatory Retirement Ages Still Permissible?

JURIST Guest Columnist Jason Birriel, St. John’s University School of Law, Class of 2015, is the author of the third article in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Birriel discusses the issues with mandatory judiciary retirement provisions and possible alternatives…In the summer of 2008, the Chief Justice of the New York Court of Appeals, Judith Kaye, authored the last opinion of her career. Why? Because Kaye turned 70 years old in 2008, and under the New York Constitution’s mandatory retirement provision she was legally barred from serving past the end of the year. Keep in mind that Kaye’s retirement was not based on her judicial abilities or any health issues. Rather, she was forced to retire for no other reason than at age 70, the New York State Constitution deemed her too old to preside over the bench.

Unfortunately, what happened to Chief Justice Kaye is the reality for state appointed judges in thirty-two states and the District of Columbia. But most people who hear about Kaye’s forced retirement react indifferently. After all, it is hard to empathize with someone who, while forced to retire, can easily join a law firm in private practice and double her salary or enter academia for a comparable salary and better quality of life. However, regardless of the opportunities that await Kaye in private practice or academia, the fact remains that state appointed jurists are discriminated against solely because of stereotypes of the elderly as “senile,” “morbid” or “demented.”

In addition, state judicial retirement laws completely ignore increased life expectancy in the US and the empirical research proving that Americans maintain their cognitive abilities later into life than once thought possible. For example, life expectancy increased [PDF] from 49.2 years at the turn of the last century to 77.5 years at the turn of the 21st century. Furthermore, Seventh Circuit Court of Appeals Judge Richard Posner’s study on elderly federal judges demonstrated that a judge’s cognitive abilities do not necessarily decline with age.

Taking into account increased life expectancy and maintained cognitive abilities, courts should now use intermediate scrutiny instead of rational basis review when hearing challenges to state judicial retirement provisions under the Equal Protection Clause. In contrast to the more deferential rational basis review, laws reviewed under intermediate scrutiny are presumptively unconstitutional and courts take a more exacting look at the method (“means”) being employed by a legislature to achieve a particular objective (the “ends”). Further, intermediate scrutiny requires a tighter connection or “fit” between the “means” and “ends” than a legislative act pursues when compared with rational basis review.

Absent heightened judicial scrutiny, states can freely implement arbitrary and discriminatory judicial retirement laws the same way they once implemented arbitrary laws based on gender or sexual orientation. At one time, a state legislature could enact a law premised on gender stereotypes, like barring the admission of women to military schools on the stereotyped belief that women could not meet the physical requirements established for men. Similarly, in the past a state could enact laws targeting homosexual conduct for no reason other than it viewed such conduct negatively and considered it detrimental to society as a whole.

However, under intermediate scrutiny, such laws are considered unconstitutional if they are not “substantially related to an important governmental interest.” Generally, that means that laws cannot be premised on broad generalizations. The result is that laws that discriminate against women simply because they are women or against gay people simply because they are gay are unconstitutional.

To qualify for intermediate scrutiny, a class of people must demonstrate that it has historically been “subjected to discrimination”; has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society”; exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group”; and is “a minority or politically powerless.”

Applying the four-factor test for intermediate scrutiny, state jurists qualify for heightened review. First, thirty-two states and the District of Columbia have mandatory judicial retirement provisions going back over a century, which demonstrates that state jurists have historically been subjected to discrimination. Second, state jurists have a defining characteristic that bears a relation to their ability to contribute to society: their ability to be judges. Third, state jurists also exhibit a distinguishing characteristic that defines them as a discrete group: their profession. Finally, the results of the New York State ballot initiative on November 3, 2013, which sought to merely increase the judicial mandatory retirement age, shows that despite the appearance of being politically connected, state jurists are politically powerless.

Since state jurists meet the requirements for intermediate scrutiny, a less discriminatory method of ensuring a competent judiciary must be developed. Instead of across-the-board mandatory retirement ages, some form of objective testing can be developed to allow states to meet the substantial government interest of maintaining a competent judiciary while not discriminating against state jurists solely because of their age.

For example, consider how Illinois tests elderly residents renewing their drivers’ licenses. As an Illinois resident’s age increases, the requirements to maintain a driver’s license increase as well. Upon reaching 75, a driver must pass a road test to renew his license, regardless of whether a driver recently renewed his license. Upon reaching 81, a driver has to renew his license every two years as opposed to every four. And after the age of 87, a driver must renew his license every year. The net effect of the Illinois driver regulations for the elderly is that the state has a method to ensure the elderly are proficient behind the wheel, while not discriminating against them solely because of their age. A similar test can be designed for state jurists as well.

Overall, increased life expectancy and new research dismissing “age-old” stereotypes about the elderly demonstrate that judicial mandatory retirement provisions should no longer be reviewed under rational basis scrutiny. Further, with life expectancy only expected to increase, unless the Supreme Court addresses this issue and applies a heightened standard of review, litigation challenging state judicial mandatory retirement ages will continue to enter the courthouse doors.

Jason Birriel earned a B.A. in Political Science from Binghamton University. Jason currently serves as the Editor-in-Chief of the St. John’s Journal of Civil Rights and Economic Development. Jason is taking part in the St. John’s Prosecution Clinic at the Queens County District Attorney’s Office.

Suggested Citation: Jason Birriel, Are State Judicial Mandatory Retirement Ages Still Permissible?, JURIST – Student Commentary, Oct. 7, 2014,

This article was prepared for publication by Josh Guckert, a Senior Editor for JURIST Commentary. Please direct any questions or comments to him at


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