When it comes to public office, people have a lot of opinions about how long anyone should get to stay. Should we keep lifetime appointments, or draw a bright line with age cutoffs and term limits? That conversation has only gotten louder as the last two U.S. presidents have governed under constant scrutiny about their ages and rumored health issues.
But unlike presidents and legislators, who generally face no formal age cap, many judges — especially in state courts — have long lived under mandatory retirement rules. In New York, the state’s highest court recently decided whether those limits still pass constitutional muster.
The Challenge from the Bench
It all started with a group of aging judges who decided they weren’t ready to hand in their robes and brought a constitutional challenge to the rule. They were one retired Appellate Division justice who had just reached the maximum certification age of 76, and two currently certified Supreme Court justices.
The Court of Appeals is New York’s highest court. The “Supreme Court” in New York is actually a lower, trial‑level court, with the Court of Appeals and the Appellate Division above it at the top of the state system.
The petitioning judges argued that New York’s newly adopted Equal Rights Amendment, which explicitly adds “age” to the list of protected characteristics, changed the legal landscape. In their view, once the state promised not to discriminate based on age in civil rights, it could not keep a rule that forces judges out simply because they turned 70. The Court of Appeals boiled that argument down to a single question: did the ERA silently erase the retirement rule, or can the two provisions live side by side?
To answer that, the court leaned on a familiar instinct: courts are reluctant to say a new amendment cancels an old one unless the conflict is unmistakable. Here, it saw the ERA in article I, section 11 as a broad anti‑discrimination guarantee, and the retirement rule in article VI, section 25(b) as a narrow, judge‑specific instruction about when service must end and how some judges can be certified to keep working until 76. Because one is general and the other very specific, the court treated the retirement rule as the more precise expression of what voters intended in this particular corner of the constitution.
History and Politics
History reinforced that conclusion. New York has imposed judicial age limits since 1777 — first at 60, then 70, with the current 70‑plus‑certification‑to‑76 system adopted in 1961 and left unchanged since. In 2013, voters refused to raise the cap to 80, and no ballot measure has ever tried to abolish age limits altogether. To the court, that record made it hard to believe New Yorkers meant to do so indirectly by adding “age” to a protected‑traits list. If the amendment was intended to scrap mandatory retirement for judges, it could have done so openly.
The court also looked at what happened after the Equal Rights Amendment passed. Within months, legislators introduced bills to amend the judicial retirement provision itself and raise the mandatory age to 76. That only makes sense if everyone assumed Article VI, Section 25(b) was still in force. If the ERA had already wiped out age‑based rules for judges, there would be nothing left to amend, and if the ERA banned any age line‑drawing, even a softened cap at 76 would be suspect. The judges took this as concrete evidence that neither lawmakers nor voters thought they had quietly invalidated the retirement rule when they approved the ERA.
Still, the court did not treat the Equal Rights Amendment as symbolic. The majority acknowledged that it was adopted to give real, enforceable protections to people who have faced serious discrimination and to update the constitution’s understanding of equality to include race, gender, disability, sexual orientation, gender identity, pregnancy, and age. But they drew a line between that broad promise and the narrow judicial retirement rule. In their view, the ERA offers a general anti‑discrimination guarantee, while Article VI, Section 25(b) reflects a specific structural choice about how long judges can serve. Because they saw no direct, unavoidable clash between the two, they refused to treat the newer, general language as having quietly erased the older, targeted rule.
A Concurrence That Sounds the Alarm
Judge Troutman agreed with the result but pushed harder on what the Equal Rights Amendment means. In her view, it creates enforceable, self‑executing rights and prohibits discrimination “pursuant to law” based on age, so courts should not treat it as merely symbolic. She also noted that a 70‑year cutoff was adopted when life expectancy was much lower, and that context matters. Even so, she did not think this case cleared the high bar for saying the ERA wiped out the retirement rule. Some age‑based lines can still make sense, she said, and deciding whether 70 is the right one for judges is ultimately a policy call for voters, not judges, to change.
What Stays, What Might Change
In practical terms, nothing changes. Judges covered by article VI, section 25(b) still must retire at the end of the year they turn 70, and those who are eligible can be certified to stay only until the end of the year they turn 76. The statutes that implement this system remain intact. For judges who hoped the Equal Rights Amendment would let them serve past those limits, this decision closes that door. Any new age cap will have to come from another constitutional amendment, not the courts.
More broadly, the ruling suggests the Court of Appeals takes the ERA seriously, but does not see it as a tool to blow up existing constitutional structures overnight. The judges are willing to treat it as a real equality guarantee, yet reluctant to use it to undo long‑standing design choices unless voters clearly ask for that. Future cases will likely probe how far the ERA goes in other contexts. For now, though, the judicial retirement age remains in place, and any decision to change it rests with voters, not the courts.
