For millennia, commentators have noted the correlation between age and cognitive decline. This relationship highlights an inherent link between aging and specific cognitive functions, such as memory recall. This connection is not always a negative: Aging also correlates with recognized benefits such as learned experience over time. However, even with such benefits, increased understanding of cognitive decline shows that the general trend still holds: with aging, some individuals may experience declines in certain cognitive abilities.
The correlation is apparent in the number of attorneys and judges who continue practicing despite signs of age-related cognitive decline. “Bar counsel in [many states] . . . have at least one, and usually many more, such stories about a very experienced attorney with a great reputation who has been put in a situation where they have harmed the public” due to aging. Some experienced attorneys encounter acute age-related challenges that can adversely impact their clients because, “due to aging, [their] hearing is going, [their] memory is spotty, and [they are] no longer serving [their] clients well.” Specifically for judges, the vast majority of all federal judges in United States history—about seventy-five percent—have left the bench only upon their death. Even when a judge decides to step down from full-time service, evidence suggests that many do not retire but instead remain in part-time senior status positions, in which they continue to render final judgments. In this way, judges who remain on the bench effectively test how the correlation between age and cognitive decline plays out in practice.
This can be harmful because of the position of power that federal judges—and the courts that they embody—hold over individual Americans. A judicial position comes with obligations that the public expects to be fulfilled—including attention to factual detail, logical reasoning, and recall of relevant rules and precedent. However, judges experiencing cognitive decline have greater difficulty fulfilling these obligations. And crucially, when federal judges age in their powerful position, the risk that they may issue final judgments while experiencing cognitive decline likely increases.
However, this does not justify sweeping interventions into the federal judiciary. Overly harsh and invasive remedies risk both stigmatizing cognitive impairment in problematic ways and intruding on deeply personal decisions that deserve respect. But current means for addressing the risk of judicial cognitive decline are just that: overly harsh and invasive. All available alternatives either fail to center the dignity of individuals experiencing cognitive decline, degrading and humiliating them in ways that cement stigma, or fall short of establishing enforceable standards that can be used to respectfully, yet effectively, hold judges accountable. The journey of recognizing cognitive decline is one of the most deeply personal processes that any individual—let alone a judge—can undertake. As such, the means by which the federal judiciary addresses this challenge are as critical as the challenge itself.