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.”
Read: What Ruth Bader Ginsburg’s death means for America
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.”