Little grey cells and judging when it’s time to go

Judges are getting older. In the US, there are more elderly judges on the federal bench than there were a few years ago. A third of federal judges are over 75 and 10% are 85 or older. This fact gives rise to various issues. How do older judges perform compared to younger ones and how does one remove members of the judiciary who are not capable of carrying out their work?

In the US, there is anti-discrimination legislation. There are also compulsory retirement ages in various professions. The compulsory retirement age for FBI special agents and anyone involved in federal law enforcement, and for most law enforcement officials, is 57. By contrast, air traffic controllers must go at 56, while pilots can continue until 65.

This book analyses cognitive aging, including changes such as poor memory recall, impaired analytical skills and increased reliance on fellow judges, especially when not sitting alone. In the US, judges rely more on written submissions and the support of their legal clerks than is perhaps common here.  

In this country, the retirement age for judges and magistrates was 70 until 2022 and is now 75. The 1959 legislation proscribed service past the age of 75 by any judges appointed after that date.

The caricature of elderly judges has largely disappeared from the media. Most film and television reflects the diversity of judges. A judge asking ‘… And who are The Beatles?’ is less likely today.  

If research were done on newly appointed judges, it would show they rely heavily on counsel’s submissions and court clerks, and are influenced by their colleagues because they are learning the ropes. Older judges are less influenced by precedent and are more likely to give judgments that appear to them to be correct.  

Perhaps age itself does not matter so much to the public. And yet it is quoted here that judges need ‘wrinkles to show experience [and grey] hair to show wisdom’.

David Pickup is a partner at Pickup & Scott Solicitors, Aylesbury