THE ADVOCATE V O L . 7 6 P A R T 5 S E P T E M B E R 2 0 1 8 653
On June 27, 2018 Justice Anthony Kennedy of the U.S. Supreme
Court announced his decision to end his active status as an
associate justice of that court, effective July 31. He was 81 at
the time of the announcement and turned 82 in July. The
court’s June 27 press release noted that “while his family was willing for him
to continue to serve, his decision to step aside was based on his deep desire
to spend more time with them”. The announcement ended months of speculation
about when, if ever, Kennedy would choose to retire.
The choice not to retire is not available to Canadian judges, who cannot
serve after turning 75. This cap has been in place since 1927 for Supreme
Court of Canada justices under the Supreme Court Act (though extended by
special Act of Parliament for Chief Justice Lyman Duff, until age 79 in
1944), and since 1961 for judges of the provincial superior courts under the
amended Constitution Act, 1867. For B.C. Provincial Court judges, the
mandatory retirement provision that kicks in at age 75 is found in the
Provincial Court Act.
However, in the U.S. Supreme Court there is no mandatory retirement
age. Two remaining justices are, like Kennedy had been, well over 75: Justices
Ginsburg (85) and Breyer (80). They are significantly older than their
colleagues: Chief Justice Roberts (63) and Justices Thomas (70), Alito (68),
Sotomayor (64), Kagan (58) and Gorsuch (51). Though not all judges wait as
long as Kennedy did to retire, notable past retirements from the U.S.
Supreme Court at post-75 vintages have included Justices Stevens (90), Brennan
(84), Marshall (83), Frankfurter (79), Burger (79) and Warren (78). These
rival the Supreme Court of Canada’s Justices Gwynne (retiring in 1902 at age
87) and Idington (retiring at age 86 in 1927 after his deteriorating condition
apparently had a role in prompting the cap in the Supreme Court Act).
The media coverage surrounding Kennedy’s retirement was frenzied.
Before the event, the questions of course centred on whether he would