Gregory v. Ashcroft

501 U.S. 452

Case Year: 1991

Case Ruling: 7-2, Affirmed

Opinion Justice: O'Connor

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Kennedy, Rehnquist, Scalia, Souter, Stevens, White


1st Concurring Opinion



1st Dissenting Opinion

Author: White in Part


2nd Concurring Opinion

Author: White in Part


2nd Dissenting Opinion

Author: Blackmun


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


Article V, section 26, of the Missouri Constitution requires that all judges, except municipal judges, retire at the age of seventy. Ellis Gregory Jr., a circuit court judge; Anthony P. Nugent Jr., a court of appeals judge; and two other judges sued Governor John D. Ashcroft. They challenged the validity of the retirement provision on the grounds that it violated the federal Age Discrimination in Employment Act of 1967 (ADEA) and the Equal Protection Clause of the Fourteenth Amendment. The district court ruled that state judges are not covered by the ADEA and that the state had not violated the Equal Protection Clause because there was a rational basis for treating judges differently than other government officials. The court of appeals affirmed, and the judges requested Supreme Court review.

First, the Supreme Court noted that the ADEA does not apply to state judges because the law specifically exempts state policymaking officials from its provisions; therefore, the statute offered no protection against mandatory retirement laws. The Court next turned its attention to the Equal Protection Clause. The portion of Justice O'Connor's majority opinion on this constitutional question is excerpted below.



... Petitioners argue that, even if they are not covered by the ADEA, the Missouri Constitution's mandatory retirement provision for judges violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Petitioners contend that there is no rational basis for the decision of the people of Missouri to preclude those age 70 and over from serving as their judges. They claim that the mandatory retirement provision makes two irrational distinctions: between judges who have reached age 70 and younger judges, and between judges 70 and over and other state employees of the same age who are not subject to mandatory retirement.

Petitioners are correct to assert their challenge at the level of rational basis. This Court has said repeatedly that age is not a suspect classification under the Equal Protection Clause. See Massachusetts Bd. of Retirement v. Murgia (1976); Vance v. Bradley (1979); Cleburne v. Cleburne Living Center, Inc. (1985). Nor do petitioners claim that they have a fundamental interest in serving as judges. The State need therefore assert only a rational basis for its age classification.... In cases where a classification burdens neither a suspect group nor a fundamental interest, "courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws." In this case, we are dealing not merely with government action, but with a state constitutional provision approved by the people of Missouri as a whole. This constitutional provision reflects both the considered judgment of the state legislature that proposed it and that of the citizens of Missouri who voted for it.... "[W]e will not overturn such a [law] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [people's] actions were irrational." Bradley. See also Pennell v. San Jose (1988)....

The people of Missouri have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age.... See Bradley, Murgia. The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment--with its public humiliation and elaborate procedural machinery--serve acceptably the goal of a fully functioning judiciary....

The election process may also be inadequate. Whereas the electorate would be expected to discover if their governor or state legislator were not performing adequately and vote the official out of office, the same may not be true of judges. Most voters never observe state judges in action, nor read judicial opinions. State judges also serve longer terms of office than other public officials, making them--deliberately--less dependent on the will of the people. Compare Mo. Const., Art. V, 19 (Supreme Court Justices and Court of Appeals judges serve 12-year terms; Circuit Court judges six years) with Mo. Const., Art. IV, 17 (governor, lieutenant governor, secretary of state, state treasurer, and attorney general serve 4-year terms) and Mo. Const., Art. III, 11 (state representatives serve 2-year terms; state senators four years). Most of these judges do not run in ordinary elections.... The people of Missouri rationally could conclude that retention elections--in which state judges run unopposed at relatively long intervals--do not serve as an adequate check on judges whose performance is deficient. Mandatory retirement is a reasonable response to this dilemma.

This is also a rational explanation for the fact that state judges are subject to a mandatory retirement provision, while other state officials--whose performance is subject to greater public scrutiny, and who are subject to more standard elections--are not. Judges' general lack of accountability explains also the distinction between judges and other state employees, in whom a deterioration in performance is more readily discernible, and who are more easily removed.

The Missouri mandatory retirement provision, like all legal classifications, is founded on a generalization. It is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all. But a State "`does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.'" Murgia, quoting Dandridge v. Williams (1970). "In an equal protection case of this type ... those challenging the ... judgment [of the people] must convince the court that the ... facts on which the classification is apparently based could not reasonably be conceived to be true by the ... decisionmaker." Bradley. The people of Missouri rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal sufficiently inadequate, that they will require all judges to step aside at age 70. This classification does not violate the Equal Protection Clause.

The people of Missouri have established a qualification for those who would be their judges. It is their prerogative as citizens of a sovereign State to do so. Neither the ADEA nor the Equal Protection Clause prohibits the choice they have made. Accordingly, the judgment of the Court of Appeals is