Most proponents of a mandatory retirement age or term limits claim that we should amend the Constitution in order to alleviate the problems associated with life tenure. Their proposals implicitly reject an incentives approach to retirement because they assume that Justices will not act rationally in response to institutional modifications. In other words, both proposals are not only radical in their scope and represent substantial constitutional change, but they also rely on the remarkable proposition that Justices are fundamentally different from the rest of us in the way they approach economic decisions. There is little evidence to commend this view, and there is considerable empirical research to the contrary that supports Judge Posner’s thesis that Justices maximize the same thing everybody else does: their own utility.11 Put simply, legal scholars have not thought creatively about life tenure, shunning promising interdisciplinary approaches in favor of drastic constitutional change.
The proponents of a mandatory retirement age and term limits have underestimated the degree to which the rational actor model applies to Justices. In making many decisions, as the empirical evidence demonstrates, Justices attempt to maximize their own preferences, whether based on policy considerations or other factors. The retirement decision is no exception. Scholars who dispute the applicability of the rational actor model to Justices have either not focused on the persuasive empirical evidence advanced by political scientists or have failed to consider all of the variables that touch upon judicial utility.