The Aging Judiciary Problem Nobody in Power Wants to Solve — Britain's House of Lords as a Case Study

Britain's House of Lords has members in their 90s making laws. The US Supreme Court has justices with no mandatory retirement age. Here is why the aging judiciary problem is getting worse, not better.

The House of Lords contains, at this writing, 87 members who are over the age of 80, 23 who are over 85, and at least 8 who are over 90. Some of these individuals — distinguished by their life experience, their accumulated expertise, and their institutional memory of events that most current MPs only know from history books — are genuinely valuable contributors to the legislative process. Others, by the politely worded private assessments of officials who work with them daily, have not been fully operationally functional for years.

The system that puts them there — hereditary peerage for about 90 remaining hereditary peers, life peerages for appointment by the Prime Minister, and 26 Church of England bishops — has no mandatory retirement age and no performance review. Lords serve until they choose to retire, until death, or until they are stripped of the whip for serious misconduct. The median age of the chamber, at approximately 70, makes it one of the oldest legislative bodies in the democratic world.

This is not primarily a British problem, though Britain's specific institutional arrangements make the dynamics particularly visible. The US Supreme Court, where justices serve lifetime appointments and where questions about individual justices' cognitive fitness have been raised in recent years across party lines, presents the judicial equivalent. France's Council of State, Germany's Federal Constitutional Court, and various national supreme courts across Europe face versions of the same tension: life tenure or very long terms designed to ensure independence from political pressure, combined with the biological reality that cognitive performance declines with age at rates that vary significantly by individual but trend in a single direction.

The political resistance to reform is easily explained: those with the power to change the rules are, almost by definition, the beneficiaries of the current rules. Proposing mandatory retirement ages for senior judicial and legislative figures is the political equivalent of proposing a pay cut — the people with the authority to implement it are the people most directly harmed by it.