The Pennsylvania Constitution imposes a mandatory retirement age of 70 for all judges and justices in the Commonwealth. This week, six judges in Pennsylvania filed a lawsuit challenging that provision’s constitutionality under the 14th Amendment’s Equal Protection and Due Process Clauses. They argue that the provision unfairly and arbitrarily deprives them of their employment based solely on their age, rather than any rational basis of ability.
“The mandatory retirement provision (i) is not rationally related to furthering a legitimate state interest, (ii) does not further an important government interest in away that is substantially related to that interest, and/or (iii) is not narrowly tailored and/or the least restrictive means to further a compelling governmental interest.”
Consequently, these judges are deprived of their property interest in continued employment without having the opportunity to contest their ability to serve.
Whether a state can impose such a provision has previously been decided by the Supreme Court. In Gregory v. Ashcroft, the Court upheld a provision in the Missouri constitution mandating retirement for judges and justices at a specified time. Citing state sovereignty under the 10th Amendment, the Court held:
“This provision goes beyond an area traditionally regulated by the States; it is a decision of the most fundamental sort for a sovereign entity. Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign. “It is obviously essential to the independence of the States, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers . . . should be exclusive, and free from external interference, except so far as plainly provided by the Constitution of the United States.”
The Supreme Court has repeatedly held that age is not a suspect classification under the Equal Protection Clause. Therefore, the Commonwealth of Pennsylvania need only assert a rational basis for its age classification. Moreover, in Gregory v. Ashcroft, the Court held that the petitioner judges did not have a fundamental interest in serving as judges, thereby rendering the due process argument mute.
The People of the States have a right to determine the qualifications of their government officials, within reason. And it is understandable why a state would want to impose a mandatory retirement age. Serving in the judiciary requires a tremendous amount of mental and physical energy. Cognitive ability declines with age, though at different rates with each individual. Rather than testing each individual and making a determination at that point, states simply impose an arbitrary age.
That age, however, may no longer comport with reality. The average life expectancy has increased over the years and there are many Americans past the age of 70 who are mentally and physically capable of serving in the judiciary or holding other government positions. In fact, four of the nine justices are over the age of 70 – Pennsylvania’s mandatory retirement age.
It is unlikely that this case reaches the Supreme Court; and even less likely that the Supreme Court would disrupt its previous holding in Gregory v. Ashcroft. Nevertheless, it may be time for Pennsylvania and other States with similar provisions to re-evaluate their mandatory retirement age.
 Article V, Section 16 of the Pennsylvania Constituion
 501 US 452
 Taylor vs. Beckham, 178 U.S. 548, 570-571 (1900). See also Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892) (“Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen”).
 Gregory v. Ashcroft, 501 US 452, 470-471