By Watson Scott Swail, President & Senior Research Scholar, Educational Policy Institute
How old is too old? Not as in, are you too old to still go out for Halloween? But as in: when should someone hang it up? As we continue to extend lifespans, and as the looming economic challenges with social security keep growing, organizations and governments need to deal with the issue of age and support.
In the US, Canada, and many other countries, mandatory retirement was outlawed many years ago, although in the United Kingdom, an employer can eliminate any employee over the age of 65 without reason. Legal petitions to this law have failed in recent years. However, even in the US, certain professions do mandate a retirement age. For instance, airline pilots must retire at 65; air traffic controllers at 56 with some exceptions; and several states have placed mandatory retirement on supreme court justices and other judges. We will return to this specific issue later.
Without doubt, retirement age is a very complex issue because it begs the question of when someone remains competent, at least cognitively, to skillfully do their job. The answer, of course, is: it depends. Some people are incredibly competent in their 80s and even 90s. Others are less fortunate in that they have either cognitive degeneration or physical ailments that make working life more difficult, if not impossible. We are what we are through our DNA, lifestyle choices, and things that just happen to us beyond our control. Let us not forget that many people want to retire, and for some the earlier the better. Others choose to work longer because they enjoy their occupation. Still others continue to work because they cannot afford to do otherwise. This will be an increasing challenge as people live longer, America gets grayer, and people are less prepared, financially, for retirement of any kind.
In higher education, institutions face a challenge because some faculty members hang on for a very, very long time. The value proposition of keeping a post-retirement age professor depends on the institution and the individual, and I’ve seen in many cases where faculty members in their late 70s and on are still being paid at the top scale. The upside is that many of these individuals are exceedingly knowledgeable and welcomed by the institution and students. There is value added. Antithetically, other individuals are less productive and less welcomed, essentially taking space that a younger Ph.D. candidate could have at a fraction of the cost. Ask any recent Ph.D. who wishes to be an academic what it is like getting a job out there. It is a very tough market.
As mentioned, some occupations have mandatory retirements. The question is, should there be more occupations that have mandatory retirements? Let us take the issue of President of the United States, for instance. This presidential election will feature two candidates who are beyond traditional retirement age. Donald Trump turned 70 in June and Hillary Clinton turns 69 in October. If either are elected and manage a two-term presidency, they would be 78 and 77 years of age, respectively, when they leave office. Is this an issue? I think it could be. POTUS 45 only needs to look back to POTUS 40, Ronald Reagan, to see the downside of not having an age limit for presidents. When Reagan was elected president in 1980, he was, and remains, the oldest president ever at 69-years old. Clinton could tie him and Trump would beat him. Reagan was diagnosed with Alzheimer’s disease in 1994, five years after he left office in 1989. However, he was showing signs of the disease as early as his reelection campaign in 1984. According to his son, Ron Jr., “There was just something that was off. I couldn’t quite put my finger on it.” It was first noticed that his speech pattern was different. Then he needed notecards to make standard phone calls to people from the Oval Office. There has been discussion about how this impacted the presidency, but we’ll never really know. When Reagan ran for office, he said that he would step down if doctors suggested that he was unfit for office. Well, he was likely unfit for office during his section term. But because he was undiagnosed, and because any slippage was surely held close and confidential, he never stepped down.
About two decades ago, I met with some congressional colleagues of mine. The talk turned to older members of congress, especially about one particular members who would be found wandering the halls and not being able to find his way back to his office. There were many stories of former Senator Strom Thurmond having similar issues. Thurmond was 100 when he left office and died six months later. Democrat Robert Byrd of West Virginia died at 92 years of age. He was still in the Senate.
As stated, several states have mandatory age limits for supreme court justices and judges, but the US Supreme Court does not have a similar statute. In fact, the actual language of the Court says that justices “shall hold their offices during good behavior,” meaning that they hold their jobs for life unless impeached or resigned. Two sitting justices, Anthony Kennedy and Ruth Bader Ginsburg, are 80 and 83-years of age, respectively, and Stephen Breyer is 78-years old. The Chief Justice, John Roberts, is a youthful 61 and the newest justice, Elena Kagan, is the youngest at 56. The three others are in their 60s. By the way, Antonin Scalia, who died earlier this year, died one month before his 80th birthday.
It has been standard practice to nominate justices in their 50s or 60s to the Court, as it is expected they bring a career of wisdom and experience to the court. The oldest justice ever appointed to the Court was 65 years of age (Horace Lurton), and Oliver Wendell Homes was the oldest ever to serve (90-years old). For interest sake, William O. Douglas served the longest term of any justice, from 1939 to 1975. That’s a lot of seat time.
But when is a Justice of the Supreme Court too old to serve? When does senility or other forced begin to diminish the cognitive ability of the Court?
Again, it is difficult to say. However, for Supreme Court justices and members of congress, and arguably any elected member, I think there should be an upper age level for protection of the offices they serve and the citizens of the country. My number would be 70-years of age, but I think 75-years would be more palatable in a vote, considering that Congress, itself, has an average age of 61 years of age (see the info chart below).
As we know, the timing of a justice to step down from the Court is a supreme (sorry for the pun) political issue. Justices have been known to over-stay their time on the court with hope that a new president of their particular persuasion can be elected to office and nominate their replacement. Currently, the Supreme Court is one justice short with the passing of Justice Scalia, and the GOP-controlled House of Representatives has refused to proceed with President Obama’s nomination of Merrick Garland due to the election. Garland is a moderate judge who, under normal conditions, would probably be welcomed by Republicans. Now the GOP has to face the reality that if Ms. Clinton becomes the President Elect on November 8, she will likely back-burner Garland and nominate a much more liberal nominee to the 115th Congress in January 2017.
If there was a mandatory age of retirement for justices, then the addition of new nominees would, to some degree, be less political as they would happen when age happens, not when politicians want.
Click on graphic to go to webpage: