Ohioans might be open to increasing the 70-year age limit for judges to run for office, but only by a few more years, and as long as the judges leave the bench when they reach their 80s, according to research conducted by Supreme Court of Ohio Justice Patrick F. Fischer.

Justice Fischer recently authored “In Ohio, How Old Is Too Old to Be a Judge?” for the University of Cincinnati Law Review. The article, which was posted late last year, has been one of the most downloaded items from the online version of the publication. As part of the research for the article, Justice Fischer conducted a survey of more than 1,200 Ohio lawyers on the issue of judicial age limits. In 1968, Ohioans adopted a constitutional overhaul of the court system. It included a provision that a candidate cannot run for judicial office if they reach the age of 70 by the time the term of office begins. In 2011, Ohio voters rejected a proposed amendment to raise the age limit to 75 by a 62%-38% margin.

Justice Fischer notes that when the age limit was established in 1968, the average life span of an American was about 70 years old. Recently, the average life span has increased to 79. Justice Fischer said he was interested in whether public opinion on the age limit might have changed as people live longer.

“The number of clicks on the law review article shows people do care about the subject,” he said.

Topic Explored for Master’s Degree
Justice Fischer’s article is based on the survey and research he conducted as part of a Master of Laws degree he recently received from the Bolch Judicial Institute of Duke Law School. In 2023, Justice Fischer was among a select group of judges invited to participate in the university’s Master of Judicial Studies Program. The program requires judges to conduct four weeks of on-site coursework over two consecutive summers, along with writing a thesis based on original research.

As part of his degree, he conducted a survey sent to 25,000 lawyers in 2024. The survey was administered by the Cincinnati Bar Association and the Ohio State Bar Association, with 1,200 responses. In the article, he wrote that the survey only went to lawyers because a larger survey of Ohio voters would have been cost-prohibitive, and lawyers are more involved in judicial elections.

“If any proposal to change Ohio’s judicial age limitations failed to gain traction with lawyers, it would be unlikely to gain traction with the general public,” he wrote.

Survey Results Suggest Openness to Age Limit Changes
The majority of lawyers agreed that judges should be subjected to age limits, but only 46% said the limit should remain at 70; the other 54% responded that it should be higher. A total of about 22% of all respondents believed no age limit is necessary, while 19% thought 75 would be an appropriate limit. Only 6% favored a lower limit of 65.

The survey found that two-thirds of lawyers believe judges shouldn’t serve into their 80s. With those findings, the article proposes that because judges serve six-year terms, raising the age limit to 73 would allow judges to run for the bench later while also forcing them to leave before turning 80. Justice Fischer did not think Ohio voters would be willing to raise the limits to 75, because it would mean that some judges would serve into their 80s. Raising the age to 75 was also the proposed amendment that voters rejected in 2011.

Justice Fischer’s article notes that Ohio and 18 other states impose a 70-year age limit on judges running for office. Florida increased its age limit to 75, and Vermont has a 90-year age limit. The article acknowledges that age limits can help protect against cognitive decline in the judiciary. But as a society, we have learned that age is only one factor related to cognitive decline, Justice Fischer writes, and the judiciary should consider whether it should do more to address cognitive decline specifically, rather than just age. He proposes that if Ohio were to raise the age limits for judicial service, that change should be accompanied by a requirement to conduct cognitive assessments on judges when they reach their late 70s.

Screening for Cognitive Decline Suggested
The article suggests that the results of a required cognitive assessment be presented to the Supreme Court’s chief justice, who would keep the information confidential and, if necessary, take action to remove a judge. The goal of the assessments is to ensure “judicial competency,” which is “necessary to ensure that litigants are afforded due process under the Fifth and Fourteenth Amendments to the U.S. Constitution.”

Justice Fischer said he found many of the survey respondents’ comments insightful. He was concerned that one indicated a judge on the bench was experiencing dementia. He was encouraged by comments from lawyers that many Ohio judges were “at the top of their game” well into their 70s.

Respondents to the survey soundly rejected the idea of returning to the ballot with the same 2011 proposal to increase the age limit to 75. However, a limited increase in age was favored by the majority of Ohio lawyers surveyed. Justice Fischer believes that with the added assurance of cognitive decline screening for judges in their late 70s, a proposed increase in the judicial age limit would be even more likely to succeed.

“While there have been other proposals to change the age limit in the past, the proposal in this Article might actually pass,” Justice Fischer concludes.