Lifetime Tenure, Aging, and Cognitive Decline

Authors

David H. Churchwell

Publication Information

52 Mitchell Hamline Law Review 459 (2026)

Abstract

Aging is a fact of life. We all go through it, and we all experience it. But not all of us are federal judges, and not all of us hold positions of power for life. Aging impacts each of us differently, and there are good reasons to have experienced, elder individuals in roles that benefit from such experience, such as serving as a judge. However, age correlates with an increased prevalence of cognitive decline, and that correlation risks harming the judiciary’s legitimacy. This Article argues that constitutional incentives for federal judges permit lengthy judicial tenures, which increases the risk of age-related cognitive decline within the federal judiciary. This Article shows that this outcome diminishes the federal judiciary’s legitimacy by preserving judges who cannot effectively perform crucial functions of judicial deci-sion-making—logical reasoning, remembering facts, and impartially applying legal rules. It also argues that this outcome incentivizes par-ties to bring bad-faith accusations regarding a judge’s cognitive condi-tion, further threatening the perceived legitimacy of the judiciary as a whole. Unfortunately, existing remedies are incomplete. They either exceed the bounds of constitutionality, stigmatize those with mental health problems, compromise personal dignity and the privacy of health in-formation, or lack enforceable standards to hold uncooperative judges accountable. This means that existing solutions—including impeach-ment, invoking the Judicial Conduct and Disability Act of 1980, man-dating confidential competency tests for judges, and closed-door persua-sion techniques—are insufficient. This Article proposes the creation of an independent Judicial Com-petence Review Board composed of medical and legal professionals to efficiently, effectively, and respectfully evaluate judges who may be ex-periencing cognitive impairment. It also proposes a specific scheme that respects the separation of powers and reduces conflicts of interest among investigators and their subjects. Ultimately, this Article seeks to pre-serve the integrity of the judicial system while honoring the contribu-tions and invaluable experience of elder judges.

Recommended Citation

Churchwell, David H. (2026) "Lifetime Tenure, Aging, and Cognitive Decline," Mitchell Hamline Law Review: Vol. 52: Iss. 2, Article 6.
Available at: https://open.mitchellhamline.edu/mhlr/vol52/iss2/6