NY judges should not be forced to retire at 70

At the U.S. Supreme Court, several momentous opinions were written by justices well past Social Security age.

The legendary Oliver Wendell Holmes, who served until he was 90, did some of his best work in his 70s, including his famous dissent in Abrams v. United States (1919) in which he asserted his “marketplace of ideas” defense of the First Amendment.

Hugo Black, at 79, penned a noteworthy dissent in Griswold v. Connecticut (1965) expressing his concern over judicial overreach. At 78, Stephen Breyer wrote the majority opinion in Whole Woman’s Health v. Hellerstedt (2016), which shot down Texas abortion restrictions. Few would deny that Ruth Bader Ginsburg was a force to be reckoned with and an intellectual beacon well into her 80s.

New York, however, puts older judges out to pasture.

Here, judges generally must retire at age 70. Many who are nowhere near ready for the rocking chair have traditionally found sinecures with big law firms, worked as judicial hearing officers, or pursued post-bench second careers as arbitrators and mediators.

But lately, former judges are increasingly in demand as the open market values their diverse experience and wisdom. I’ve seen many older judges returning to the robust practice of law, trying cases and arguing appeals with vigor and wisdom. Former colleagues have pursued other opportunities where their judicial insights are welcome: teaching, writing and publishing; public speaking and lecturing for a fee; serving on corporate boards and state commissions; working at think tanks; providing strategic consultation to attorneys during trials; and hiring out their talent to write appellate briefs.

Although I left the judiciary well before mandatory retirement, in the decade since I hung up my robes I have served as dean of Hofstra Law School, founding member of Mediation Solutions of NY, and recently became a partner at Burner Prudenti Law. There is life after the bench.

The encore performances of former jurists mirrors a societal shift that increasingly recognizes the value of older workers. That trend is driven by demographic tendencies, technological advancements, anti-discrimination laws, and economic necessity: With the current labor shortage, many companies are tapping into the older workforce to fill gaps, frequently offering flexible work arrangements to entice experienced people to return to the fray.

Ageism, however, remains a deeply ingrained societal bias, and overcoming that prejudice is still a daunting challenge for many older people. Anti-discrimination laws can help only so much.

Federal law protects workers 40 and older from age discrimination, but the Age Discrimination in Employment Act applies only to employers with 20 or more employees.

New York is much more protective. The New York State Human Rights Law prohibits age discrimination for all employers, regardless of size. But the state’s highest court, the Court of Appeals, has struggled at times to balance the strictures of anti-discrimination laws with practical implications like budget constraints. The irony, of course, is that the judges who wrote those decisions are themselves subject to mandatory retirement when they reach 70.

In 2011, Chief Judge Jonathan Lippman proposed a constitutional amendment to raise the retirement age to 80. It was defeated, but it’s time to revisit that proposal and a model based on the federal judiciary senior status — keeping in mind how much Holmes, Black, Breyer, Ginsburg and others contributed at an age that would have excluded them from the New York bench, and put all that talent to good use.

This guest essay reflects the views of Gail Prudenti, a partner at Burner Prudenti Law, former dean of Hofstra Law School, and former chief administrative judge of New York State.