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?

  • 3
    DeSantis makes it sound like the age limit is not a fixed limit but rather a reason the governor of the state can use to fire judges or not depending on his whim. Is that actually how the age limit works?
    – quarague
    Commented May 29, 2023 at 6:53
  • @quarague It was added to the Florida constitution in 2018: ballotpedia.org/… (the age is 75)
    – user2164
    Commented May 29, 2023 at 16:47
  • @Undo The law you linked increased the retirement age so it wouldn't have put anyone on retirement immediately but rather have deferred retirement for some judges. But both before and after there was a specific retirement age, meaning DeSantis had no direct influence on who retires, so his statement seems completely wrong if that law is the only relevant rule.
    – quarague
    Commented May 29, 2023 at 16:59
  • Fizz, "(age limits) for SCOTUS" could be a 2-ended issue. Are you asking about only an upper, lower or both? Commented May 30, 2023 at 19:44
  • 1
    Perhaps a term limit rather than an age limit like n*4 years? say 24 years for new judges? Commented May 30, 2023 at 19:55

3 Answers 3


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
  • 19
    Can you explain the logic that an age limit on Justices would necessarily be an age limit on Congress? They're completely different offices, in different branches of the government, with different existing requirements and methods of selection. Why would an upper age limit have to apply to both?
    – Cadence
    Commented May 28, 2023 at 20:57
  • 14
    Senators don't serve for life. Every six years, their constituents have to go out and put them back in Congress. Likewise with Representatives and the President. Nobody has to or even gets to decide if Justices keep serving. But regardless, that just means we might want such an amendment to apply to all offices, it doesn't mean that it must.
    – Cadence
    Commented May 28, 2023 at 21:40
  • 13
    Again, that's an argument why one might pass a law setting the same age limit for Congress and the Court, but it is not an argument that it would be impossible to pass a law just putting limits on the Court.
    – Cadence
    Commented May 28, 2023 at 21:59
  • 3
    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. The only one that I would expect is citizenship, and possibly (because it is included for President and Congress) age minimum. Remember, when the Constitution was written we didn't have a lot of law schools in the US. And life expectancy wasn't anywhere near what it is today. Commented May 29, 2023 at 3:41
  • 11
    "any sort of age limit applied to Supreme Court Justices would also have to be applied to every other office": whatever gives you that idea? The amendment could apply to any other office or none. There is no constraint on constitutional amendments except with regard to equal representation in the senate. "If you say that someone is too old to be a judge at the age of 75 why wouldn't that also apply to congress or the white house": no, it wouldn't, unless the amendment explicitly applied to those offices too.
    – phoog
    Commented May 29, 2023 at 6:59

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.

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.

  • That, is an interesting tidbit of information and makes me wonder if that had been approved how it would have applied to congress and the president/vice president.
    – Joe W
    Commented May 28, 2023 at 17:27
  • 2
    @JoeW It only concerned SCOTUS, so it wouldn't have been applied to them at all. Commented May 29, 2023 at 5:38
  • @zibadawatimmy People would quickly ask why age was an issue for the supreme court and not an issue for congress, the president or vice president.
    – Joe W
    Commented May 29, 2023 at 13:47
  • 2
    @JoeW Because those guys have to go through elections every 2-6 years. SCOTUS is permanent. Kavanaugh and Barret or any other Justice could be deciding the law of the land for 40+ years for no other reason than that they had a long life and didn't want to retire. Commented May 30, 2023 at 5:12
  • 1
    @JoeW But it does mean there's already a release valve for the people to use when age does become an issue to them with a given politician: they just stop electing them. There's no such release valve on lifetime appointments with no age or term limits. You're seriously comparing apples and oranges here. We are at a fairly unique point in time where age/term limits for all branches feels particularly relevant, but that hasn't always been the case, because in large part the people knew they could vote out everyone but judges. Commented May 31, 2023 at 5:33

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).

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).

  • "often considered to technically have the power": why the weasel words? It has the power, technically or otherwise, regardless of what anyone considers to be the case or how frequently they consider it.
    – phoog
    Commented May 29, 2023 at 7:20
  • I mean, can't they just have Judges swear to retire before age 75, and agree that breaking that promise is an example of failure of Good Behavior? It wouldn't apply retroactively. And it would permit one party to nominate unlimited tenure judges while the other limits them to age 75.
    – Yakk
    Commented May 29, 2023 at 15:05
  • 1
    @Yakk How would that be the case? They could just say that the situation changed and nothing can be done.
    – Joe W
    Commented May 29, 2023 at 17:14
  • @sumelic: Yeah, it likely wouldn't work. Someone would appeal to the Supreme Court anyway on the basis of other constitutional rights violated, the court would take the case and find the jurisdiction stripping unconstitutional in a procedural matter because whatever denies a constitutional right is also unconstitutional.
    – Joshua
    Commented May 29, 2023 at 17:18
  • @JoeW The point is that breaking that promise is itself a failure of Good Behavior. The (legal) argument that Good Behavior is nothing except impeachment relies on the ambiguity of the term; by making it clear, that goes away. (Good Behavior is a requirement to be a judge in the US constitution, and the clause is not the same as impeachment clause) Now the courts could argue that any kind of commitment violates the equality of the branches of government (whose rules are unwritten, as opposed to the Good Behavior which is written), but it is plausible.
    – Yakk
    Commented May 29, 2023 at 18:54

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