London Daily

Focus on the big picture.
Thursday, Mar 12, 2026

No Other Western Democracy Allows This

No Other Western Democracy Allows This

Only in America does so much power rest in the hands of elderly judges.
When the Framers of the Constitution debated the document’s careful system of checks and balances, they confronted a question that would only become more important over time: Should there be a mandatory retirement age for federal judges?

Alexander Hamilton argued against one. Writing in The Federalist Papers, he dismissed “the imaginary danger of a superannuated bench.” Hamilton won out, and the Constitution placed no term limits on the service of federal judges, including the men and (much later) women who would make up the Supreme Court.

More than two centuries later, the United States stands alone in its handling of lifetime appointments to its highest court, and the drawbacks of a “superannuated bench” have become ever more clear.

Last Friday, Justice Ruth Bader Ginsburg became the third member of the Supreme Court to die in office in the past 15 years. Her death injects a partisan fight over the judiciary into the tempest of a presidential election, and it has brought about a nightmare scenario for Democrats, who have long feared the possibility that a conservative would replace her progressive vote on the Supreme Court and shift the nation’s jurisprudence dramatically to the right.

But it also serves as a reminder that only in the U.S. does the balance of so much national power hang on the ability of an 87-year-old jurist to hold out for a few more months against the ravages of disease and the inevitability of life’s natural course.

No other major Western democracy-nor the majority of U.S. states-allows its most powerful judges to serve so deep into the twilight of their lives.

Had Ginsburg, who died from complications of metastatic pancreatic cancer, been serving on the top court of Canada, Britain, or Australia, for example, a mandatory retirement age would have forced her off the bench more than a decade ago.

The same would have been true for former Chief Justice William Rehnquist and former Justice Antonin Scalia, who both served on the high court long past the age of 75 and died in office.

Indeed, three other justices on the current Supreme Court-Stephen Breyer, Clarence Thomas, and Samuel Alito, who are all 70 years old or older—have also served past the retirement age of many foreign countries and more than a dozen U.S. states.

“Everybody who’s thought about designing a constitutional court since 1900 has thought that a retirement age was a good thing. There’s no reason to think that they were wrong,” Mark Tushnet, a Harvard law professor and legal historian, told me. “The existence of tenure until death or choice is extremely rare around the world.”

There’s a fairly simple explanation for why the Framers decided against a mandatory retirement age, Tushnet and other legal historians told me: People didn’t live as long back then, and, as Hamilton wrote, few “outlived the season of intellectual rigor.”

In Hamilton’s home of New York, the state constitution at the time forced judges off the bench at 60-the same age Ginsburg was when President Bill Clinton appointed her to the Supreme Court more than a quarter century ago.

The idea of a lifetime appointment was meant to help ensure the independence of federal judges, who would not have to face voters, as legislators did. But they have been serving well into their 70s, 80s, and even 90s for a while now. (In 2009, when Justice David Souter announced his retirement from the Supreme Court at the relatively youthful age of 69, his decision took Washington by surprise.)

In 1995, Judge Richard Posner referred to the federal judiciary as “the nation’s premier geriatric occupation.” That label could now apply to the upper reaches of the entire U.S. government.

Never before have the elderly wielded so much power across the three branches. Donald Trump, who in 2017 became the oldest man ever inaugurated president, is 74; his challenger, Joe Biden, is nearly three years older.

House Speaker Nancy Pelosi is 80, as are her two top lieutenants in the Democratic caucus. Senate Majority Leader Mitch McConnell is 78.

“I just don’t think it’s in the public interest to have people certainly over 80-and I think 75 should be the cutoff for most everything—exercising serious power, whether it’s the Court, whether it’s in Congress,” the legal historian David Garrow told me.

Voters at least have the opportunity to replace aging lawmakers, he noted: “With the Court, America is stuck with them.”

Just as congressional leaders have resisted calls for generational change, so too have justices resisted pressure to step down. Some progressives called for Ginsburg to retire in 2014, when Democrats still controlled the White House and the Senate and had more power to replace her with a like-minded successor.

“To me this is a totally nonpartisan problem, but we get these justices who become too full of themselves, want to be public celebrities, and become convinced that, you know, their continuation in office so long as they can breathe is essential,” Garrow said, noting that both the conservative Scalia and the liberal Ginsburg eagerly embraced the fame they achieved toward the end of their lives. “That’s just fundamentally wrong.”

“We’ve seen with Scalia and now Ginsburg how unpredictable sudden deaths then result in intense partisan conflict,” he added.

In a 2000 law-review article, Garrow argued for a mandatory retirement age for the Supreme Court, citing the “mental decrepitude” that had befallen justices including Bill Douglas in the 1970s and Thurgood Marshall two decades later.

The closest Congress came to addressing the issue was in 1954, when a large Senate majority approved a constitutional amendment that would have forced all federal judges to retire at 75. Days later, however, the Supreme Court handed down its ruling in Brown v. Board of Education, and the nation’s attention shifted to the fight over desegregation.

Now the debate over reforming the Supreme Court centers not on age but on political power. No one has questioned the mental acuity of any of the current justices, or of Rehnquist, Scalia, and Ginsburg, who recently died in office. (Justice John Paul Stevens served until he was 90 and wrote three books in the nine years between his retirement and his death.)

Progressives are pushing to expand the Court if Biden wins the presidency and Democrats recapture the Senate majority, to counteract a likely 6–3 conservative advantage that they would consider at least partly illegitimate. Others, such as the nonpartisan group Fix the Court, are advocating a broader reform to set an 18-year term limit for justices and guarantee that each president will get two appointments in a four-year term.

When I asked Gabe Roth, Fix the Court’s executive director, to weigh term limits against a mandatory retirement age, he favored term limits. The problem with a retirement age, he said, is that presidents would just respond by picking younger nominees to ensure that they can still serve on the Court for a long time, extending their legacy. Instead of justices in their late 40s or 50s, he said, “our Supreme Court justices would be 30 or 35.”

At the state level, 32 of the 50 states have mandatory retirement ages, ranging from 70 to 90, according to the National Center for State Courts. There has been a recent push to change the system by raising the age when judges must retire or by removing the limits altogether, notes Bill Raftery, a senior analyst for the NCSC.

For the most part, that effort has failed when put to the ballot. “Voters don’t want to give judges additional active years,” Raftery told me. Then he laughed: “They don’t want to give them to any elected officials.”
Newsletter

Related Articles

0:00
0:00
Close
Release of Mandelson Files Raises Tensions as UK Seeks Stable Relations With Donald Trump
UK Documents Reveal Starmer Was Warned About Mandelson’s Epstein Links Before Ambassador Appointment
Nearly Five Hundred UK Mortgage Deals Withdrawn in Two Days as Market Volatility Forces Lenders to Reprice
Three Cargo Ships Hit Near Iran as Attacks Spread to Strategic Strait of Hormuz
Why British Police Repeatedly Declined to Investigate Jeffrey Epstein’s UK Links
UK Parliament Ends Hereditary Seats in House of Lords, Closing Chapter on Centuries of Aristocratic Lawmaking
EU and UK Urge Israel to Act Against Rising West Bank Settler Violence Amid Regional Tensions
US Senator John Kennedy Says Keir Starmer Should Not Be Trusted for Military Advice Amid Iran War Debate
UK High Court Rejects Attempt to Revive Terrorism Charge Against Kneecap Rapper
Revolut Secures Full UK Banking Licence After Multi-Year Regulatory Wait
Kentucky’s Bench Boost Powers Wildcats Past LSU in SEC Tournament Opener
British Couple Die After Being Pulled From Water at Australian Beach During Family Visit
Global Energy Agency Announces Record Release of 400 Million Barrels to Stabilize Oil Markets Amid Hormuz Disruption
British Airways Suspends UK Repatriation Flights as Middle East Travel Disruption Deepens
US Forces Prepare Ordnance at RAF Fairford as Strategic Bombers Deploy for Middle East Operations
Nigel Farage Faces Criticism After Saying Britain Should Stay Out of Iran War
Landmark UK Trial Begins Over Sony’s PlayStation Store Pricing
UK High Court Rejects Bid to Challenge Britain’s Chagos Islands Agreement With Mauritius
Finnish Duo Triumphs in England’s Annual Wife-Carrying Race, Winning a Barrel of Ale
How U.S. and UK National Security Strategies Are Reshaping the Global Business Landscape
Green Party Gains Momentum as Labour Shifts Toward the Political Centre
Royal Navy Destroyer HMS Dragon Sets Sail for Eastern Mediterranean as Regional Tensions Rise
UK Homebuilder Persimmon Warns Iran Conflict Could Dent Property Buyer Confidence
Roman Abramovich Signals Legal Fight if UK Seeks to Seize Chelsea Sale Funds
UK Ready to Back Emergency Oil Reserve Release as Middle East Conflict Pushes Prices Higher
Study of 40,000 Articles Sparks Debate Over Alleged Anti-Muslim Bias in UK Media
US and UK Army Chiefs Strengthen Cooperation on the Future of Armored Warfare
Britain’s Search for the Next ARM Intensifies as Startups and Investors Target the Semiconductor Frontier
Three US Strategic Bombers Arrive at RAF Fairford as Iran Conflict Intensifies
Cancer Death Rates in the UK Fall to the Lowest Level on Record
UK Government Bond Yields Retreat Slightly After Sharp Spike Triggered by Middle East Conflict
UK Chancellor Warns Middle East War Could Push Inflation Higher
UK Prime Minister Warns Iran Conflict Could Drive Up Prices and Threaten Economic Stability
Trump Declines UK Offer to Deploy Aircraft Carriers to Middle East Amid Iran Conflict
Prince Harry and Meghan Markle to Return to Australia After Seven Years for Philanthropic and Business Engagements
UK Government Signals Independence From Washington as Cooper Says Britain Does Not Agree With Trump on Every Issue
UK Experts Warn AI Chatbots Are Fueling Surge in Claims of Organised ‘Satanic’ Ritual Abuse
UK Political Parties Divided Over Strategy as Iran Conflict Reshapes Foreign Policy Debate
Britain Discloses Secret Military Repair Hubs Operating Inside Ukraine
Trump Says US No Longer Needs UK Carrier Support After Delayed Offer Amid Iran Conflict
Why Britain Has Become Involved in the US-Israel Military Campaign Against Iran
UK Gas Storage Falls to Under Two Days as Iran Conflict Jolts Global Energy Markets
UK Warned to Brace for Economic Shock as Iran War Drives Global Energy Price Surge
Starmer and Trump Hold First Call After Public Dispute Over Iran Conflict
UK Dentists Returned £1.3 Billion to Government as Shift Toward Private Care Accelerates
Expert Warns UK Must Build Emergency Food Stockpiles to Prepare for Climate Shocks or War
UK Plans Charter Flight to Evacuate British Nationals from Gulf as Regional Conflict Disrupts Air Travel
Families of Zimbabwe’s Liberation Fighters Call on Britain to Help Locate Skulls Taken During Colonial War
Iran’s Ambassador Warns Britain to ‘Be Very Careful’ Over Deeper Role in Expanding Middle East War
UK Military Leadership Defends Britain’s Defensive Role in Expanding Middle East Conflict
×