Gregory v. Ashcroft, 501 U.S. 452; 111 S. Ct. 2395; 115 L. Ed. 2d 440 (1991)

Facts—The Age Discrimination in Employment Act of 1967 (ADEA) applied to state employees except for elected officials or those appointed to policy-making positions. Two Missouri state judges, who were required by state law to retire at the age of 70, argued that as officials appointed by the governor and subject to retention elections they were exempt from the law and that, in any event, the law requiring their retirement did not have a “rational basis” as would be required by the equal protection clause of the Fourteenth Amendment. The District Court and the U.S. Eighth Circuit Court of Appeals both rejected the judges’ arguments.

Questions—(a) Did the ADEA apply to state judges appointed by the governor and subject to retention elections? If not, (b) did the forced retirement of state judges at the age of 70 violate the equal protection clause of the Fourteenth Amendment?

Decisions—(a) No; (b) No.

ReasonsJ. O’Connor (6–3 on central issue; more split on others). O’Connor focused on “the system of dual sovereignty between the State and the Federal Government.” She extolled this system and its intention (along with separation of powers among the three branches of the national government) of forming a “double security” to protect liberty. The supremacy clause grants Congress power to impose its will when operating under delegated powers, but states have special powers under the Tenth Amendment, especially when they are legislating in regard to their own “political function.” When it attempts to regulate state policy choices, the national government must state this intention plainly. This law does not do so. When it comes to interpreting the Fourteenth Amendment, the Court recognizes that, unlike the commerce clause, this amendment was specifically designed as an “interference with state authority.” Earlier cases, however, have established that “the Fourteenth Amendment does not override all principles of federalism.” Congress should not be assumed to be exercising its enforcement powers under Section 5 of the Fourteenth Amendment unless it specifically states its intention to do so. All that a state needs to show when making a distinction based on age is a “rational basis,” since such a classification affects “neither a suspect group nor a fundamental interest.” “It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age.” Voluntary retirement and public oversight may not be adequate remedies. Although forced retirement is “founded on a generalization,” it is not an irrational one.

J. White argued that the ADEA was not intended to apply to judges, but he did not accept O’Connor’s “plain statement” rule in this context. He further argued that O’Connor overemphasized Tenth Amendment concerns and understated congressional powers under Section 5 of the Fourteenth Amendment.

J. Blackmun in dissent did not believe that state judges were exempt from the ADEA, and he examined the deliberations on the legislation to bolster his case. He believed that the Missouri retirement provision did violate the ADEA, which he clearly believed to be within congressional authority to enact.

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