NRPLUS MEMBER ARTICLE
ur editorial last week called for Mitch McConnell to follow Nancy Pelosi’s lead and step down from leading his caucus in light of his age and visible difficulties speaking in public on a few recent occasions. McConnell is 81, and he was in robust health until a fall in March. Pelosi is 83 and left leadership in January along with Steny Hoyer (84), but James Clyburn (83) is still the No. 2 House Democrat. Dianne Feinstein, visibly failing mentally in the Senate, is 90.
President Joe Biden is 80 and running to serve until he is 86. (Seventy-seven percent of Americans think he’d be too old for the job.) Donald Trump is 77 and running to serve until he is 82.
The Supreme Court is now comparatively young: Clarence Thomas, the oldest justice, is 75. But the Court, too, has had its share of octogenarian leaders in recent times. Ruth Bader Ginsburg died in office at 87. John Paul Stevens served until he was 90. Harry Blackmun, Stephen Breyer, William Brennan, Thurgood Marshall, and Anthony Kennedy all served until they were between the ages of 81 and 84.
For now, the Constitution provides no limit on how old any of these people can grow to be while still serving full-time in highly demanding jobs with weighty responsibilities to the public. When the Constitution was written, there was little reason to consider such limits, because even those who escaped early death rarely lived many years after their faculties seriously declined. Given the late development of modern medicine, that remained true until well into the 20th century. The first seven presidents were all between the ages of 57 and 61 when they took office, and after 68-year-old William Henry Harrison died just a month into his presidency, nobody became president at an age older than 65 until Ronald Reagan in 1981.
The only Supreme Court justice to serve past age 82 before the 1920s was Roger Taney, who turned 80 just after issuing the Dred Scott opinion and died in office seven years later, clinging to the job to prevent Abraham Lincoln from replacing him during the Civil War. His recalcitrance helped convince the wartime Republican Congress to create a tenth justice, Stephen Field — who then went on to serve until he was 81 and senile.
Currently, if mentally or physically incapacitated, the president can be involuntarily removed via the 25th Amendment. He can also be term-limited from running again. The vice president and the justices can be removed only by impeachment or, in the vice president’s case, at reelection time. Senators and representatives can be expelled by their colleagues or voted out of office — but senators serve six-year terms. The justices are there for life.
While gerontocracy has not produced good governance — with ageing leaders being especially hesitant to worry about the long-term fiscal sustainability of the federal budget — we have thus far avoided a major crisis. We may not always be so fortunate. I do not believe in adding term limits to the Constitution (that’s another day’s argument), but we ought to add an upper age limit in order to head off crises before they happen and hopefully, at the margins, encourage some new blood. Some of us might even live to see a president born after 1949 again before we die.
It is true that age is an imperfect proxy for the capacity to do the job, but the advantage of bright-line rules is that they are all but self-enforcing in a way that is impersonal and bipartisan. Removing a president or a Supreme Court justice from office on grounds of mental or physical unfitness would instigate a titanic political power struggle; doing so because they’d hit a constitutional age limit would be a routine thing. Many state courts, for example, already have mandatory retirement ages.
Adding such limits is likely to save us more grief than it will cost us in the services of wise old heads. As Nate Silver details, there is powerful statistical evidence of the dramatic rise in the risk of death and/or dementia, at least in men, as we move into our early and mid 80s. Few of history’s statesmen have done their best work in their 80s; men with the energy of Chuck Grassley into their nineties are the exception, not the rule. Winston Churchill suffered a severe stroke in office at 79. Paul von Hindenburg, a man not easily trifled with in his 60s, ran for a second term as president of the Weimar Republic at 84 in 1932, by which time he was too feeble to stand in the way of Hitler’s takeover of the government. Lord Palmerston, the oldest British prime minister, is perhaps the best-case scenario, yet he died in office at 84 after a fairly brief illness. Reagan, whose age was often held against him, left office at 77 and began his descent into Alzheimer’s a few years later. Few would dispute that Reagan would have struggled to keep up with the job had he been elected to another term in 1988. As Michael Brendan Dougherty notes, even at the Vatican, Pope Benedict XVI broke precedent to retire at age 85 rather than repeat the decline that sapped his predecessor of the strength to administer the Church.
Here’s the amendment I would propose:
Section One: No person shall be eligible for election to any federal office who shall have attained to the following Age on the date the person would take office: for president or vice president, seventy-five years; for senator, eighty years; for representative, eighty-five years.
Section Two: No person shall serve as a justice of the Supreme Court, or as a judge on the federal appeals or district courts, or any other court Congress shall hereafter create, who shall have attained to the Age of eighty years.
Section Three: Notwithstanding Section Two of this article, a justice of the Supreme Court who shall have attained to the Age of eighty years during an annual term of the Court shall remain eligible to serve until the completion of that term. Notwithstanding Section Two of this article, a justice of the Supreme Court, or a judge on the federal appeals or district courts, or any other court Congress shall hereafter create, may continue to serve after the age of eighty in senior status in the inferior courts, subject to such rules and regulations as Congress may provide.
Section Four: Nothing in this article shall apply to render any elected official already serving at the time of the ratification of this article ineligible to complete his or her term in office, nor shall any judge (including a justice of the Supreme Court) be rendered ineligible to serve until eight years after the ratification of this article.
I’ve purposely written the language to track the Constitution’s provisions for minimum ages, which are likewise keyed to age at the start of one’s tenure rather than on the day of election. Biden, for example, was elected to the Senate at 29 in 1972, but because his birthday is in late November, he had turned 30 and become eligible to serve by the time he was sworn in in January 1973.
There is fair debate over where to draw the age lines, but 75 for presidents acknowledges the strenuous nature of the job. We have the example of Reagan, who served a successful term starting just before he turned 74, to compare with Biden, who is visibly past his prime in a term starting at 78. Cutting off senators from starting new terms after 80 won’t rid us of octogenarian senators, but it will put an outer limit at 86.
For judges, 80 would be the limit past which the only options were retirement or senior status, which many current federal judges already take around that age in order to keep doing the job with a reduced workload.
The rules should be most lenient for the House, given that House members face the voters most frequently and have the least individual power as members of a body of 435 rather than 100, nine, or one.
Just as removing a siting justice would be politically painful, so would passing an amendment that forces one off the Court in short order — a rule that would polarize this issue around the composition of the current Court rather than around the actual issue of age and infirmity. Accordingly, my proposal would be to exempt any current official from hitting the age limits during their current term, and to grandfather this rule in over eight years for judges, such that there would likely be two intervening presidential elections before it takes effect.
The time for this rule to be urgently necessary hasn’t quite come yet. But when it does, it will already be too late. We should get to work now.
Read More: Time to Institute Retirement Ages for Federal Officeholders