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Study Reveals That Aging Federal Judges May Experience Cognitive Impairment Affecting Their Opinions

by Douglas Ankney

According to a recent study titled The Effects of Lifetime Tenure and Aging in the United States Federal Judiciary (“Study”), as federal judges age, they may experience a decline in their cognitive abilities that affects their written opinions.

The Study, authored by Ryan Owens of the University of Wisconsin, Ryan Black of Michigan State University, and Patrick Wohlforth of the University of Maryland, examined opinions from the 12 U.S. Circuit Courts of Appeals but excluded the Federal Circuit. Using software designed to examine language, the researchers analyzed hundreds of signed, unanimous opinions issued between 2005 and 2022 from a random sample of judges confirmed to the bench from 1975 onward, with the youngest judge at age 40 and the oldest judge aged 88. The data revealed that, on average, the oldest judge copied 279 words from the lawyers’ briefs into the judge’s written opinion compared with 245 words by the 40-year-old. Copying text from a lawyer’s brief into the opinion was viewed as a “cognitive shortcut.”

Owens said, “Pretty much across the board, we find that older judges take longer to accomplish their tasks than they did when they were younger and they rely more on cognitive shortcuts.” However, the Study’s authors cautioned that other reasons may give rise to judges copying language from lawyers’ briefs, including: “judges appointed during earlier time periods were always more likely to borrow language from briefs”; “maybe experienced lawyers are better able to write briefs that will appeal to a longtime judge”; or “maybe older judges are better able to recognize quality briefs and sound arguments.”

Even so, the Court of Appeals for the Federal Circuit suspended 96-year-old Judge Pauline Newman from hearing new cases due to concerns surrounding her mental competency. And the Study’s findings suggest Congress should act to impose term limits (currently, federal judges are tenured for life). The average age of a sitting federal judge in 2022 was 68.5 years.   

 

Sources: Black, Ryan C. and Owens, Ryan J. and Wohlfarth, Patrick C., The Effects of Lifetime Tenure and Aging in the United States Federal Judiciary (August 29, 2023), reuters.com

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