Models of Judicial Tenure: Reconsidering Life Limits, Age Limits and Term Limits for Judges

Abstract

Tenure is an important facet of judicial independence and a key principle underpinning the rule of law, yet its protection varies markedly from country to country. This article examines the historical development and empirical experience of three pre-eminent appellate courts — the Supreme Court of the United States, the High Court of Australia and the Constitutional Court of South Africa — as examples of prevalent models of tenure, namely, life tenure, age limits and term limits. Dissatisfaction with tenure arrangements in each jurisdiction has been impelled by increasing human longevity, growing awareness of incapacities that accompany ageing, and changing attitudes to age discrimination. These developments have led to constitutional and legislative reforms to ameliorate the problems that inhere in different models of tenure. However, the choice between models, and between key parameters within each model, reflect complex policy preferences. The article concludes that hybrid arrangements that incorporate age limits and term limits — illustrated by the Constitutional Court of South Africa — provide a suitable compromise between competing policy objectives.