Judicial Exits: The Tenure of Judges in Three Apex Courts

in R Ananian-Welsh & J Crowe (eds) Judicial Independence in Australia (Federation Press, 2016), 89-105

18 Pages Posted: 20 Sep 2016 Last revised: 15 Feb 2020

See all articles by Brian Opeskin

Brian Opeskin

University of Technology Sydney

Date Written: June 1, 2016

Abstract

Tenure is an important facet of judicial independence and a key principle underpinning the rule of law, yet its protection varies markedly from country to country. This paper examines the historical development and empirical experience of three pre-eminent appellate courts — the Supreme Court of the United States, the High Court of Australia and the Constitutional Court of South Africa — as examples of prevalent models of tenure, namely, life tenure, age limits and term limits. Dissatisfaction with tenure arrangements in each jurisdiction has been impelled by increasing human longevity, growing awareness of incapacities that accompany ageing, and changing attitudes to age discrimination. These developments have led to constitutional and legislative reforms to ameliorate the problems that inhere in different models of tenure. However, the choice between models, and between key parameters within each model, reflect complex policy preferences. The paper concludes that hybrid arrangements that incorporate age limits and term limits provide an appropriate compromise between competing policy objectives.

Keywords: judges, age limits, judicial tenure, life tenure, mandatory retirement, senility, term limits, aging, ageing

Suggested Citation

Opeskin, Brian, Judicial Exits: The Tenure of Judges in Three Apex Courts (June 1, 2016). in R Ananian-Welsh & J Crowe (eds) Judicial Independence in Australia (Federation Press, 2016), 89-105, Available at SSRN: https://ssrn.com/abstract=2839628

Brian Opeskin (Contact Author)

University of Technology Sydney ( email )

Faculty of Law
University of Technology Sydney
Sydney, New South Wales 2007
Australia
+61-2-95149670 (Phone)

HOME PAGE: http://www.uts.edu.au/staff/brian.opeskin

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