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On Thursday, Supreme Court Justice Stephen Breyer officially announced his intention to retire from the nation’s highest court. The 83-year-old justice, who has served on the court since 1994, says he will retire once his replacement has been nominated and confirmed.
This announcement has understandably led to a wave of speculation about potential nominees that President Joe Biden could choose from and what the confirmation process could look like in the U.S. Senate. It should also further an important conversation about the age of U.S. government officials.
America’s leaders are getting old. This isn’t a new realization. People have previously been raising concerns about our slide into gerontocracy (a government ruled by old people).
The U.S. has a 79-year-old president, the oldest ever. The former president, a potential 2024 candidate, is not far behind at 75. The Speaker of the House and her top two deputies are all in their 80s. The U.S. Senate, by average age of its members, is the oldest it has ever been.
The country itself is getting older, and in some ways the rising ages in Congress reflect that. Even with that recognition, however, it’s clear that the aging of our leaders — both elected and appointed — is worryingly out-of-step with the people they represent.
According to the Pew Research Center, as of February 2021, the median age was nearly 65 for U.S. senators and nearly 59 for members of the U.S. House of Representatives. As of 2017, based on a report from the Congressional Research Service, the median age of U.S. Circuit Court judges was 65 and the median age of U.S. District Court judges was 61.
The median age of the electorate was 50 as of 2019, again according to Pew. The median age for the entire U.S. population, including those not old enough to vote, was estimated to be 38.5 in 2020.
During his Thursday announcement, Breyer discussed the ongoing experiment that is American democracy, and highlighted how that experiment relies on the involvement of successive generations.
“My grandchildren and their children, they’ll determine whether the experiment still works,” Breyer said. “And of course, I am an optimist, and I’m pretty sure it will.”
Breyer’s words were eloquent and reflective, highlighting a wisdom built through years of experience and thought. Clearly, age has its strengths. But while we’re following his example and being optimistic about the power of younger generations, can we also start better empowering them and involving them in decisions that will shape the future? Can we work toward a government that is better reflective of the people it represents?
And, more specifically, should we be placing upper age limits on some federal roles to help ensure that?
It’s not as if age as a condition of federal service is a new concept. This qualification is baked right into the U.S. Constitution. U.S. House members must be at least 25 years old, senators must be at least 30, and the president must be at least 35. Asking if the inverse — some sort of forced retirement age for federal officials — should not be considered radical. This is particularly true for federal judges, who are appointed rather than elected.
While it’s not exactly the same thing as an age limit, even Supreme Court Chief Justice John Roberts has highlighted potential benefits of judicial term limits in the past. He had some interesting things to say on the subject in 1983, when he worked in the administration of President Ronald Reagan.
“The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today,” Roberts wrote in a memo at the time. “Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.”
Many states have mandatory retirement ages for their state-level judges, typically at or around age 70. Maine, however, is not one of them.
Now, like with term limits, the best age limit, at least for elected positions, are elections themselves and the choice made at the polls by voters. Beyond considerations about age, clearly the power of incumbency and money have helped fuel the disconnect between officials and the people they represent and serve.
Justice Breyer’s retirement announcement should set the stage for a bigger conversation about the country’s aging leadership, and the need to get more young people involved.