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
Date Written: June 1, 2016
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
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