Would it be constitutional in the US to have age limits for SCOTUS justices?

Question

As DeSantis said, in Florida

“We have age limits for justices,” DeSantis said. “The minute I got elected to office, three of the four liberal justices were off the court, because of age. So, I was able in my first term of office to replace three liberal justices with three conservative justices.”

FWTW, a slightly older (2020) article in The Atlantic says:

No other major Western democracy—nor the majority of U.S. states—allows its most powerful judges to serve so deep into the twilight of their lives. [...]

“Everybody who’s thought about designing a constitutional court since 1900 has thought that a retirement age was a good thing. There’s no reason to think that they were wrong,” Mark Tushnet, a Harvard law professor and legal historian, told me. “The existence of tenure until death or choice is extremely rare around the world.”

What kind of majority would be needed in Congress to pass something like that (age limits) for SCOTUS? I.e., would it require a constitutional amendment, or could it be done by regular law?

Answer 1

Yes, a constitutional amendment would have to be made as it would be a change to the requirements to be on the court and surprisingly it doesn't list any requirements to be one even having a background in law.

What Are the Requirements to Become a Supreme Court Justice?

There are no explicit requirements in the U.S. Constitution for a person to be nominated to become a Supreme Court justice. No age, education, job experience, or citizenship rules exist. In fact, according to the Constitution, a Supreme Court justice does not need to even have a law degree.

What Does the Constitution Say?

The Supreme Court was established as a body in Article 3 of the Constitution, signed in convention in 1787. Section 1 describes the roles of the Supreme Court and lower courts; the other two sections are for the kind of cases that should be examined by the Supreme Court (Section 2, since amended by the 11th Amendment); and a definition of treason.

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."1 However, since the Senate confirms justices, experience and background have become important factors in the confirmations, and conventions have been developed and largely followed since the first selection of the court during the first president's term of office.

As a note this is something that is unlikely to happen as any sort of age limit applied to Supreme Court Justices would also have to be applied to every other office. As it currently stands there are older people in Congress than the current slate of justices.

The reason I make this statement is that the issues with age also apply to members of congress, the president and vice president. In fact questions about people being too old to serve have been raised about all of those offices and just like justices none of them have age limits. However once those questions start getting asked about one office people will naturally ask them about others. If they limit the age of a judge the next question will be about the age of members of congress, the president, and vice president.

Ages of Supreme Court Justices

Justice	Born	Nominated By	In	Age
Clarence Thomas	1948	George H.W. Bush	1991	74
Samuel Alito	1950	George W. Bush	2006	72
Sonia Sotomayer	1954	Barack Obama	2009	68
John Roberts	1955	George W. Bush	2005	67
Elena Kagan	1960	Barack Obama	2010	62
Brett Kavanaugh	1965	Donald Trump	2018	57
Neil Gorsuch	1967	Donald Trump	2017	55
Ketanji Jackson	1970	Joe Biden	2022	52
Amy Barrett	1972	Donald Trump	2020	50

Answer 2

Yeah, Joe W's answer is probably correct because the latter article I was reading eventually gets to

The closest Congress came to addressing the issue was in 1954, when a large Senate majority approved a constitutional amendment that would have forced all federal judges to retire at 75. Days later, however, the Supreme Court handed down its ruling in Brown v. Board of Education, and the nation’s attention shifted to the fight over desegregation.

I haven't dug up the details on that failed proposal (as to whether in included anything else), but it seems that merely adding an age limit would require a constitutional amendment.

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As another (very long) paper recounts, it was in fact the 2nd time such a proposal was made. There was a prior one during FDR's term, distinct from his court packing threats, and in fact introduced (by several Senators) as a moderate alternative to FDR's packing plan, but FDR refused to consider the former and age-limits were not put up to a vote then.

Also, that paper says

Historical remembrance that this effort ever occurred appears to be almost wholly lacking from the entire post-1954 historiography of the Supreme Court [...]

The 1946-1954 campaign for age limits was initially led by Edwin A. Falk, and was thoroughly discussed by the ABA, which then forwarded it to closely affiliated Senators. Falk's proposals were actually aimed at preventing an FDR-type packing threat, so he wanted an amendment to fix the number of justices (at 9) among other things (which included an retirement age). Eventually this led to an ABA resolution:

the committee resolved to return its recommendations to the House of Delegates at its next meeting in late February of 1950, and at that time the House officially approved both a proposed amendment fixing the size of the Court at nine and compelling retirement at age seventy-five and a separate proposal rendering individuals ineligible for the presidency or vice-presidency within five years of having served on the Court.

And then

In mid-May of 1952, without even a prefatory speech on the Senate floor or any other attendant publicity, [Senator] Butler introduced a resolution detailing an amendment that would fix the Court's size at nine, mandate retirement at age seventy-five, and insulate the Court's appellate jurisdiction over constitutional cases from any congressional alteration.

So it wasn't a simple age-limit proposal.

An identical companion measure, House Joint Resolution 194, was soon introduced by Representative Edward T. Miller of Maryland, but not until early 1954 did Butler's measure receive a hearing before the Senate Subcommittee on Constitutional Amendments.

And it (Senate Joint Resolution 44) quickly passed the Senate in a rather quiet moment:

within minutes the resolution was put to a vote and passed by a tally of fifty-eight to nineteen (with nineteen absent and not voting), well more than the two-thirds margin needed for approval. [...]

Three days after the Senate approval, the New York Times published a cautionary editorial echoing Senator Hennings's concerns. The amendment had been approved with "virtually no notice by the American public. No matter how meritorious such an amendment may be-and in this case we think it is meritorious-this is not the right way for the Senate to pass upon a substantial change in the nation's fundamental law."

[...] in late June a House Judiciary subcommittee accorded the proponents a one-day hearing. Senator Butler testified first, explaining how the Senate had adopted Attorney General Brownell's suggestion that the mandatory retirement provision apply to all federal judges and how he had jettisoned the five-year ban regarding presidential and vice-presidential candidacies. "[R]ather than risk losing the whole amendment, I consented to having this section dropped," he revealed.'

As that paper also recounts, the ultimate irony was that the amendment had been supported by precisely the group that was then incessed by Brown:

Most illustrative of how the ABA's congressional world was so completely upended by the Court's mid-1950s rulings was the utterly inverted stance of Maryland Senator John Marshall Butler toward the Court he had been so eager and enthusiastic to protect from congressional or executive encroachment in 1953 and 1954. Within just three years Butler was transformed into "an outspoken critic of the Warren Court," and in early 1958 Butler introduced a bill that would have removed from the Court's appellate jurisdiction bar admissions cases like Schware and Konigsberg-precisely the sort of legislative intrusion his 1953-54 constitutional amendment had been designed to prohibit. Butler's bill failed, but as Court scholar Walter Murphy noted several years later, the Maryland Senator "sorely regretted his earlier efforts to protect the Court's jurisdiction."

That paper also notes that there is widespread, but not quite universal consensus that impeachment is the only constitutional removal mechanism of federal justices. It then details the years-long campaign of Senator Nunn to pass a law (rather than constitutional amendment) that would have allowed justices to be removed for mental incapacity by a majority of the Judicial Conference. All of these attempts failed, although a watered down version did pass the Senate (S 1423) "on September 7, 1978, by a margin of forty-three to thirty-two" but was then not considered by the House of Representatives. It was further watered down in 1979 (S 1873) by removing Supreme justices from scope and more or less reduces the role of the Conference to recommending impeachment to the House of Representatives in such cases; this (much watered-down version) did pass into law as the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980.

Answer 3

An age limit for SCOTUS justices is not constitutional.

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour

(Article III, Constitution of the United States)

This is conventionally interpreted as giving federal judges lifetime tenure, and so a constitutional amendment appears to be the only practical way of introducing an age limit for Supreme Court justices (or any federal judges).

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That is the simple answer to the question. Because the Constitution is not a very specific or clearly written document, there are potential complications, but none that seem to provide a realistic alternative.

As I mentioned in a previous answer to "How could the US Congress reduce the size of the US Supreme Court?", Congress does have fairly broad powers under the "necessary and proper" clause to make legislation that alters aspects of the judicial system (including the the Supreme Court) that are not specified by the Constitution (hence the reason court-packing schemes are technically possible).

Some scholars have proposed potential loopholes to lifetime tenure based on uncertainties about who gets to determine what "good Behaviour" means, but see the Constitution Annotated's notes on the Good Behavior Clause Doctrine, which state that "the modern view of Congress appears to be that good behavior does not establish an independent standard for impeachable conduct". So the consensus view seems to be that absent impeachment, federal judges cannot be constitutionally removed from office.

Someone sufficiently creative might be able to come up with ways to get some kind of similar effect to an age limit without technically removing a judge from office. (E.g. Congress has the power of creating inferior courts, and according to legal consensus, it possesses the power of "stripping" the appellate jurisdiction of existing federal courts, including the Supreme Court; perhaps in theory we could envision using some combination of these to reduce the power of the Supreme Court once its justices reach a certain age). However, the political feasibility of using any tactic like that to try to sidestep the need for a constitutional amendment seems exceedingly low (and apparently a minority of scholars disagree that stripping the Supreme Court of its appellate jurisdiction is constitutional, which I didn't realize before writing this answer).