FDR introduces mandatory retirement at age 80 for federal judges

For some time I have thought of the possibility that President Franklin D. Roosevelt, frustrated by the Supreme Court’s resistance to the New Deal, introduces a constitutional amendment or law to introduce mandatory retirement at age 80 for federal judges — excluding those already over 80 when the law comes into effect.

I have several questions:
  1. if FDR tried to amend the Constitution to make retirement at least of Supreme Court Justices mandatory at age 80 (except where this would constitute an ex post facto law), would the amendment be passed?
  2. how would Supreme Court history be altered by mandatory retirement at age 80?
  3. how would lower courts be altered by a requirement to retire (maybe but not necessarily to “senior status”) at age 80?
 
This would have massive effects but excluding butterflies if this rule had been in effect Ginsburg would have gone in 2013 allowing Obama to nominate her replacement but Breyer would have left in 2018 allow Trump to nominate his replacement while Kennedy would have left the Court in July 2016, just before the election which combined with Scalia's death could have seen the Court drop to 7 members if the GOP had refused to nominate replacements because of the upcoming election.
 
Life expectancy in 1945 was only 60, so it would appear useless and unnecessary to set a maximum retirement age of 80; such an amendment would probably not pass. A maximum age of 50 would be more likely.
 
For some time I have thought of the possibility that President Franklin D. Roosevelt, frustrated by the Supreme Court’s resistance to the New Deal, introduces a constitutional amendment or law to introduce mandatory retirement at age 80 for federal judges — excluding those already over 80 when the law comes into effect.

I have several questions:
  1. if FDR tried to amend the Constitution to make retirement at least of Supreme Court Justices mandatory at age 80 (except where this would constitute an ex post facto law), would the amendment be passed?
  2. how would Supreme Court history be altered by mandatory retirement at age 80?
  3. how would lower courts be altered by a requirement to retire (maybe but not necessarily to “senior status”) at age 80?
The court itself can struck it down as unconstitutional
 
Life expectancy in 1945 was only 60, so it would appear useless and unnecessary to set a maximum retirement age of 80; such an amendment would probably not pass. A maximum age of 50 would be more likely.
That would have some radical rammifications, but I see 65 being more likely there as the maximum retirement age.
 
This would have massive effects but excluding butterflies if this rule had been in effect Ginsburg would have gone in 2013 allowing Obama to nominate her replacement but Breyer would have left in 2018 allow Trump to nominate his replacement while Kennedy would have left the Court in July 2016, just before the election which combined with Scalia's death could have seen the Court drop to 7 members if the GOP had refused to nominate replacements because of the upcoming election.
Actually, the rule would — despite the advanced age of most Justices when FDR came to power — have had no definite effects until Hugo Black passed 80 in 1966. The first importance difference is that LBJ would have replaced Black with Thurgood Marshall. Unless Tom Clark retired before Nixon resigned, that would probably mean Lewis Powell does not get onto the bench, and that either Jimmy Carter or a Gerald Ford faced with the most liberal Senate in history nominates Clark’s replacement.

The major butterflies, though, are that liberals Marshall, William Brennan and Harry Blackmun would be replaced several years earlier. It is possible that even if Scalia is confirmed to replace Brennan, then Senate Democrats under the leadership of Patrick Leahy would after the 1986 elections have not accepted any hard-line conservative candidate to replace Marshall, Blackmun and Warren Burger. That would likely have left uneasy compromises — though better than what we saw with Scalia in 2016 — for a third of the Court. Whilst Kennedy and Souter would likely have got on the bench, Clarence Thomas most certainly would not have (at least not until a decade after he actually did). This might have postponed the conservative constitutional revolution somewhat — until John Paul Stevens passed eighty in 2000, following which the Republicans would have been able to do what they have actually done since the Republican Revolution.
 

nbcman

Donor
For some time I have thought of the possibility that President Franklin D. Roosevelt, frustrated by the Supreme Court’s resistance to the New Deal, introduces a constitutional amendment or law to introduce mandatory retirement at age 80 for federal judges — excluding those already over 80 when the law comes into effect.

I have several questions:
  1. if FDR tried to amend the Constitution to make retirement at least of Supreme Court Justices mandatory at age 80 (except where this would constitute an ex post facto law), would the amendment be passed?
  2. how would Supreme Court history be altered by mandatory retirement at age 80?
  3. how would lower courts be altered by a requirement to retire (maybe but not necessarily to “senior status”) at age 80?
A US President can suggest a constitutional amendment to the US Congress. But US President has no role in the amendment process. For reference, here is the process:

 
This would have been a much bigger lift politically than the actual court-packing bill FDR proposed in 1937. To make this happen, you would need a much more liberal Congress than OTL.
 
This would have been a much bigger lift politically than the actual court-packing bill FDR proposed in 1937. To make this happen, you would need a much more liberal Congress than OTL.
Why exactly would a plan to introduce retirement for federal judges (at a fairly high age) be a much bigger “lift” than a plan to radically expand the court?
 
The votes were just not there for a constitutional amendment. And the whole emphasis on the age of the justices probably backfired on FDR: After all, Brandeis and (to a lesser extent) Cardozo were "old" but liberal. Brandeis remarked that conservatism on the Court was the product of genes, not years. https://books.google.com/books?id=PtBJOuXmGf8C&pg=PA338 And what of the recently deceased Justice Holmes, who didn't retire until he was ninety? I can just see opponents of the measure, but who didn't want to appear to be "conservative" lashing out at FDR for insulting such great though elderly progressive jurists..
 

colonel

Donor
The court itself can struck it down as unconstitutional
Maybe for a statute, but if they tried for an amendment that actually passed to claim unconstitutionality they would find out they weren't the final arbiter when replacements are nominatedf & confirmed & the other two branches cut their pay off when the Justices turn 80.
 
The court could try to strike down an amendment on grounds that it was incorrectly ratified, but once it's in the constitution, it's there.
The court's power to declare a law unconstitutional isn't an explicit power, either. Since it's not documented into law, just precedent, it might not be a forever thing.
 
The court itself can struck it down as unconstitutional
To strike down an amendment as unconstitutional* would be at least as beyond the pale as the court packing scheme was if not moreso. You need a really, really good argument for that kind of decision. Without that, the opposition narrative that this is a dangerous power grab by the legislature would implode while giving a a huge boost to the idea that the court is out of control and in need of reigning in. I cannot see any court risking the its legitimacy and a major crisis over the matter of retirement age. It's absolutely not worth such a fight. In any case been said, this amendment is unlikely to pass and would be of questionable usefulness. Term limits on the other hand...

*With the exception of the right for states to have representation in the Senate.
 
Last edited:
Why exactly would a plan to introduce retirement for federal judges (at a fairly high age) be a much bigger “lift” than a plan to radically expand the court?
Amending the Constitution requires supermajorities in both houses of Congress and ratification by state legislatures, whereas Roosevelt's court-packing plan was a simple statute.
 
Top