Jun 8, 2013 4 min read

When John Paul Stevens retired from the U.S. Supreme Court in 2010, he was subject to laudatory profiles not only for his longevity on the court, but for his longevity, period – he was 90 years old and was still a model of vigor and lucidity. Truth be told, Stevens could probably have stayed on the nation’s highest court for another couple of years and been perfectly fine on the bench.

If Stevens had been a judge in Pennsylvania, however, he would have been forced to hang up his robe and stash away the leather-bound law books in 1990, a full 20 years before his actual retirement. That’s because, as per our state constitution, judges are forced to retire at age 70.

It’s a rule that has outlived its usefulness and should be changed.

When that provision was added to the constitution in 1968, 70 was considered to be, well, elderly. Heart disease, cancer and other maladies of the aged often struck down people in their 60s in those days. Now, not only are there more 70-year-olds around than there once were, they are in notably better shape, thanks to advances in medicine and a better understanding of what it takes to make it to 70 and still be hale and energetic. If 70 was once the heart of senior citizenhood, it’s now, arguably, the tail end of middle age.

But the 70-and-out provision for judges remains stubbornly intact. That means capable judges with a deep reservoir of knowledge are being forced to the sidelines. Sure, some remain on the bench on a per-case basis as senior judges, but, as far as day-to-day work goes, they’re out of the game.

There are efforts afoot, however, to change this outmoded regulation. In May, the Pennsylvania Supreme Court heard oral arguments in a case that would eliminate the mandatory retirement of judges at age 70, saying it represents a form of age discrimination. An attorney for the plaintiffs argued before the state’s highest court – which, coincidentally, has a few members rapidly approaching the mandatory retirement age – that mechanisms are in place to remove judges from the bench if they become mentally incapacitated, which renders moot one of the primary reasons for having a mandatory retirement age in the first place. Proponents of keeping the age limit where it is also say that it helps bring new blood into the system. But if a seasoned judge is doing the job ably, where would the benefit be in giving them the hook, especially if they are not yet ready for a cane?

Also, there are no other similar age limits placed on other public officials. Four members of the current U.S. Supreme Court are over age 70; Ronald Reagan was sworn in for his first term as president a few weeks before his 70th birthday; and Joe Biden turned 70 in November and is contemplating his own run for the White House in 2016. In May, this newspaper reported on the ongoing tenure of John “Chummy” Lignelli as Donora’s mayor. He is set to embark on his sixth term leading the Mon Valley community at age 91. There’s no logical reason that judges should be singled out for special restrictions.

Aside from the challenge that was heard before the Pennsylvania Supreme Court, legislation has been introduced in Harrisburg to nudge up the mandatory retirement age to 75, but the process of amending the state’s constitution is cumbersome. Amendments must be approved by both the state House and Senate in two consecutive legislative sessions, then go to voters for approval. If you thought privatizing liquor sales was knotty, just try amending the state constitution.

It’s an effort worth undertaking, however. Nina Totenberg, the legal affairs correspondent for NPR, said it well: “I actually think with age comes some level of wisdom.”