The Wisconsin State Assembly passed a bill Nov. 9 that would set an age limit of 75 for state Supreme Court justices, according to the Wisconsin State Legislature. The bill was introduced by Rep. Nik Rettinger (R-Mukwonago) and co-sponsored by Sen. Cory Tomczyk (R-Mosinee) and passed the Assembly by a vote of 53–44 with two abstentions.
Democrats of the Assembly were joined by nine Republicans in voting against the bill.
Younger generations need to take control of the state judiciary, Tomczyk said in a testimonial statement in support of the bill.
“As individuals age, we know that their ability to tackle different tasks becomes increasingly difficult,” Tomczyk said. “We frequently see those in positions of power fail to acknowledge this reality and turn over the reins to the next generation.”
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The bill would prohibit individuals from serving on the state Supreme Court if they are elected on or after their 75th birthday, meaning individuals could still serve if they turn 75 after being elected, according to the bill’s text. Further, if made law, the bill would not apply to current Supreme Court justices seeking reelection and temporary reserve judges appointed by the chief justice.
Assembly Bill 552 is a continuation of a 1977 ballot initiative titled “The Wisconsin Unified Court System Amendment,” according to Tomczyk’s testimonial statement.
The initiative passed with support from 67.46% of the voters and resulted in an amendment of the state Constitution, which gave the Wisconsin Legislature power to set Supreme Court age limits at 70 years and above, according to the testimonial statement.
Data from the National Center for State Courts show Wisconsin would be joining more than 30 states in setting 70- to 75-year age limits for state Supreme Court justices if the bill were made law.
One argument in favor of age limits is to combat unrepresentative gerontocracy in the American judiciary, University of Wisconsin political science professor Howard Schweber said.
“[Supreme Court justices] are representative in the sense that they speak to and on behalf of the country as a whole and there is a general democratic sense of discomfort with such an important role being played by people who are drawn from such a narrow spectrum of society and that may have to do with education or wealth or in this case, age,” Schweber said.
Aside from being unrepresentative, gerontocracy also prohibits informed decisions on new-age issues, Schweber said. Judges who make First Amendment decisions related to the internet, for example, should be familiar with what the internet is and how it works, Schweber said.
There is also a general concern that some aging Supreme Court justices are unable to carry out their responsibilities because of declining health, Schweber said.
“There have been justices about whom it has been argued they really should have retired sooner than they did, right, because they were just getting old,” Schweber said. “They were no longer able to perform their duties in the way that they should. I don’t know if that’s an immediate concern, but it’s a general concern.”
But there is also a general argument in opposition to setting judicial age limits, Staff Attorney for the State Democracy Research Initiative at UW Law School Bryna Godar said.
Opponents of age limits argue the experience of older judges should be appropriately valued, Godar said.
“On the flip side, opponents of these provisions say that setting a cut-off age is overbroad,” Godar said. “In terms of the health concerns, they’re very individual to individual and there are plenty of judges on the bench past age 70-75 who are still very cognitively healthy and healthy overall. Setting an age limit can mean judges stepping down, who still have a lot of experience and wisdom to contribute.”
Godar said the United States Ninth Circuit Court of Appeals, which has a Wellness Commission that routinely evaluates the cognitive and mental health of its judges as a viable health management alternative opponents of age limits have pointed to.
There are key functional differences between setting judicial age limits and having term limits, Godar said. Term limits focus on how long a judge serves, whereas age limits focus on when judges step down, Godar said.
“Say you had an 18-year term limit, if somebody started on the bench at 70, they could serve until 88,” Godar said. “But if you had a retirement age [at 75], somebody could start serving on the bench at 70 and only serve for five years.”
The bill arrived at the Senate on Nov. 10 and was referred to the Wisconsin Senate’s Committee on Shared Revenue, Elections and Consumer Protection. The Committee doesn’t currently have any hearings scheduled, according to the Wisconsin State Legislature.
The long-term implications of the bill are unclear, Schweber said.
“I think the general ramifications would be that we have a somewhat younger judiciary,” Schweber said. “And beyond that, it is an experiment … there’s no really strong clear assertions that I can make.”
