Recap: “Justice Grayed, Aged, and Delayed,” with University of Wisconsin Prof. Ryan Owens
The short answer to the question at the heart of University of Wisconsin Edwards Professor of American Politics Ryan Owens’ February 28 colloquium at the Kinder Institute is, quite simply, ‘yes’: In a way that we should probably expect, cognitive aging does impact the faculties of judges in ways similar to everyone else. Attention and memory wane with age, for example, while speech and language skills actually tend to improve until we reach 50 (and plateau from there). Still, the stakes are different for members of the judiciary, and as Prof. Owens’ recent research at the intersection of neuro- and political science shows, we might do well to pay closer attention to two specific effects of cognitive aging when it comes to federal circuit court judges.
Why is this question especially relevant today? Most notably because Article III judges—who, per the Constitution, have life tenure so long as good behavior is maintained—are serving longer and longer terms. In 1789, a 25-year old could expect to live to 45 or 50. Today, a 40-year old can expect to live another 35-40 years, and judges over the age of 75 currently make up more than 30% of the federal judiciary.
In terms of where and how these statistics come to bear, Prof. Owens focused in his talk on the impact of aging on processing speed and executive functioning in particular. As for the former, he noted how, as they age, federal circuit court judges take 2 to 3 weeks longer on average to circulate the first draft of their opinions, a delay that has (and will continue to have) material consequence, given a backlog in circuit court dockets that doesn’t appear to be going away anytime soon. Additionally, decreased processing speed causes cognitive stress to compound, and the effects of this, Prof. Owens observed, can be mapped onto executive functioning (think: working memory, cognitive flexibility, and self-regulation). Specifically, an increase in stress drives judges toward heuristics, and this reliance on shortcuts manifests itself (a) in a greater likelihood to refuse accommodating differing opinions on ideological grounds and (b) in greater deference to the position that the United States argues in a given case.
All of this brings up difficult questions of what to do next? Imposing term limits and/or age limits on federal judges has certainly been discussed, but this would require drastic constitutional overhaul which, Prof. Owens argued in closing, is neither likely nor optimal. Patience, he suggested, might instead be in order as we continue to collect data on such things as how increasing the number of clerks, or even the number of judges, might mitigate the issues that his research raises.