The Supreme Court reconvenes today for the 2009-2010 term. Its docket is filled with difficult legal challenges, like whether juveniles should face life imprisonment and whether the scope of Miranda rights should be curtailed. Facing these challenges is the only group of people holding high office in the federal government who both are (1) not elected, and (2) can, theoretically, remain in office until death. Ages on the Court right now range between 51 and 89.
Having said that, I will now propose something Constitutionally anathema: the Supreme Court in its present form is untenable and its structure should be changed. From a neuroscientific standpoint, allowing the most crucial legal decisions in our country be decided by significantly aged brains does not make sense.
I am not, of course, speaking directly of those on the present Supreme Court who are in their 50s or 60s (there are four of them). In fact, the exact age of anyone on the Court right now isn’t really germane to my argument. The theoretically possible age is. Since there is no reason why a Justice needs to leave the Court (outside of obvious impairment), if one wishes to stay until the clock tolls 95, he or she can. Justice Stevens at 89, as an example, can stick around until the big goodbye. It’s entirely his call.
If we could look at the brains of the eldest Court Justices, however, we might be less inclined to feel indifferent about that fact. Recent research shows that higher order systems in the aging brain are quite literally falling apart. The coordination between neural systems becomes less and less synchronized and white matter integrity breaks down. This all occurs in normal aging brains, not those with Alzheimer’s (which experience more radical breakdown), and the result is significantly impaired cognitive function. The changes peoples’ brains undergo are not universal — the rate of degradation varies by individual — but on average a normal aging brain will experience broad cognitive decline.
None of this would have been known to those crafting our structure of government. Traditionally, age has always been synonymous with wisdom — and as a matter of learning with experience, it surely is. But wisdom operates within the parameters of our brains, and our brains are governed by unforgiving principles of matter. The simple, resulting truth is that one can be too old to make sound decisions.
The structure of the Supreme Court not only avoids this truth, it defies it by operating under an 18th century worldview entirely at odds with present-day science.
The answer in my opinion is term limits, with a ceiling on how old a Justice can be when appointed. We can still preserve impartiality of the Justices by allowing them to sit for no more than 10 years on the bench. That’s long enough to outlast any President who appoints them, and short enough to avoid a crash collision with cognitive decline if the ceiling is in the neighborhood of 65 (which, by the way, is the oldest any judge has been when first appointed).