In 1995, Judge Richard Posner referred to the federal judiciary as “the nation’s premiere 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.”
Just as congressional leaders have resisted calls for generational change, so too have justices resisted pressure to step down. Some progressives called for Ginsburg to retire in 2014, when Democrats still controlled the White House and the Senate and had more power to replace her with a like-minded successor. “To me this is a totally nonpartisan problem, but we get these justices who become too full of themselves, want to be public celebrities, and become convinced that, you know, their continuation in office so long as they can breathe is essential,” Garrow said, noting that both the conservative Scalia and the liberal Ginsburg eagerly embraced the fame they achieved toward the end of their lives. “That’s just fundamentally wrong.”