91 Pages Posted: 6 Dec 2019
Date Written: November 20, 2019
America’s judiciary is aging. The average age of federal judges is 69 years old, older than it has been at any other time in the country’s history. The typical reaction to this demographic shift is concern that aging judges will serve past their prime. Scholars have thus offered proposals for mandatory judicial retirement, judicial term limits, and mechanisms for judicial removal. In this Article, I critique such proposals and draw on cognitive neuroscience to argue that rather than forcing their retirement, we should be empowering aging judges.
The central neuroscientific insight is that individual brains age differently. While at the population level, age generally leads to reductions in information processing speed, and for some, serious deficits in memory and decision-making capacity, there is much individual variation. An 80-year old judge is at significantly greater risk for dementia than a 50-year old judge. But it does not follow that all 80-year old judges have diminished cognitive capacities, nor that all 50-year old judges are free from cognitive decline.
Given individual differences in how aging affects cognitive decline, the current system — which mandates intense health scrutiny when a judge is younger, followed by no required medical evaluation for the rest of the judge’s career — can be vastly improved. I argue that we can empower judges by providing them opportunities for confidential, accurate, and thorough cognitive assessments at regular intervals throughout their judicial careers.
If carefully developed and implemented so as to avoid politicization and to ensure complete confidentiality of results, individualized judicial cognitive health assessments will allow judges to make more informed decisions about when and how to modify their service on the bench. More individualized assessment will allow the legal system to retain the wisdom of experienced judges, while avoiding the injustice that comes with handing over the courtroom to a judge who is no longer capable of running it.
Keywords: judges, brain, law and neuroscience, cognition, aging, mandatory retirement, judicial term limits, dementia, alzheimer's, decision-making
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