Out and About (Sort of): Too Old? By Howard Freedlander

When I read a few weeks ago about Supreme Court Justice Stephen Breyer’s retirement at age 83, prompted possibly by politics, I began to think about age and competence.

Maryland law requires judges to retire at 70. Large urban law firms require attorneys to retire at 65. Airline pilots must leave the cockpit at 65. Working folks view 65 as the right time to exit the workplace, though many disengage earlier and some later.

Seventy-six-year-old friends continue to work hard as attorneys, teachers, investment advisers, consultants, network broadcasters and real estate entrepreneurs. They like what they do and see little reason to retire except in the event of declining health.

And we all know about top-flight athletes like Tom Brady and Peyton Manning who struggle (in their early 40s) to decide when to step away from a sport—in this case, professional football—and pursue lives free of physical pounding and maneuvering.

As I thought about this column, I originally intended to propose that the intellectual demands of reading and understanding complex law would be too strenuous for the 83-year-old Breyer, the late Justice Ruth Bader Ginsburg, who was still serving at 87 when she died and Justice John Paul Stevens, who left the bench at 89.

I would be wrong.

We all age differently. Supreme Court justices have huge capacities for learning and analysis. Their cognitive abilities may remain strong despite advancing age—though Stevens retired after he realized that he was stumbling over words as he read what would be his last opinion.

Of course, I suggest that any Supreme Court justice is dependent on bright, competent clerks. The judge must be wise in his or her choices; his or her opinions must be written in a clear, reasoned way. They cannot be slipshod. The judge must be sharp and astute enough to participate fully in the drafting of these briefs. And question the clerks.

Arbitrary age limits are just that—arbitrary. They remain mired in past thinking. People are living longer. Their minds and bodies still function optimally, though one’s gait may be a bit slower. They are not doddering senior citizens unable to cope with life’s demands. They still are productive.

Discounting those over 65 precludes the usefulness of able-minded people who may not be ready yet to savor leisure.

That said, I do wonder if common sense should intervene in retirement decisions. Younger colleagues should have the opportunity to advance and offer a different, though not always better, perspective. Opportunities for growth and learning abound outside the workplace. Jobs need not define or drive us.

Our 78-year-old president incurs harsh criticism for his alleged cognitive infirmity. His predecessor as president planted this seed in the public psyche. While I may be displeased with some of his decisions, I do not buy the narrative that Biden is unable to perform at an elevated level as our commander-in-chief. At the same time, I am prepared to accept that judgment if circumstances justify it, for non-political reasons.

My point is this: I refuse to judge anyone based on their age until I see proof that they are functioning poorly, free of biased criticism. An age-biased opinion about a person’s capability would be dangerous, if not downright wrong.

Ageism can be insidious. It can be harmful to the merit- asked health of our country.

Columnist Howard Freedlander retired in 2011 as Deputy State Treasurer of the State of Maryland. Previously, he was the executive officer of the Maryland National Guard. He also served as community editor for Chesapeake Publishing, lastly at the Queen Anne’s Record-Observer. In retirement, Howard serves on the boards of several non-profits on the Eastern Shore, Annapolis and Philadelphia.