New York’s highest court spent Wednesday wrestling with a blunt question: can the state keep forcing judges off the bench at 70 now that age discrimination is explicitly banned in the state Constitution?
The case, Matter of Miller v. State of New York, was filed by three current or former state Supreme Court justices. They argue that the 2024 Equal Rights Amendment, which added age to the state civil rights clause, wiped out the long‑standing rule that judges must retire at the end of the year they turn 70. They also say the post‑70 certification system, which lets some retired judges serve two‑year terms up to age 76, cannot cure what they see as a direct clash with the new protections, according to the New York State Law Reporting Bureau.
At oral argument, plaintiffs’ lawyer John Leventhal told the Court of Appeals that the Equal Rights Amendment’s age‑discrimination ban applies to the judiciary just like any other branch. Lawyers for the state, including Ester Murdukhayeva from the Attorney General’s Office, countered that “being a judge is not a right that appertains to a person,” and that the Constitution has always treated judicial service as a specially regulated office, not an entitlement. Judges pressed the challengers on whether voters, in approving a broad civil‑rights amendment, really meant to overturn a specific, narrow retirement rule that has sat in the Constitution for decades. The court reserved decision at the close of the session, according to Courthouse News Service.
So far, the lower courts have not been eager to read a repeal between the lines. In March, the Appellate Division tweaked a trial court’s dismissal but ultimately held that the Equal Rights Amendment’s text and history do not clearly erase Article VI § 25(b), the provision that imposes the age‑70 retirement requirement. The opinion and underlying filings lay out that procedural history and the narrow question now before the high court, as detailed by FindLaw.
What’s at stake
If the Court of Appeals agrees with the plaintiffs, New York judges could gain a new path to stay on the bench past 70 without relying on the existing certification process. If the court rejects that reading, the current mix of constitutional and statutory retirement rules, along with the limited certification option through age 76, will remain in place.
Legal observers who watched Wednesday’s arguments noted a healthy dose of skepticism from the bench and said the judges appeared inclined to keep the age cap, a view reflected in coverage and analysis of the hearing by Bloomberg Law. Policy advocates tracking judicial reform issues have echoed that reading, including groups such as The Fund for Modern Courts.
Legal implications
The Court of Appeals now has to untangle three technical questions that carry big practical consequences. First, is the Equal Rights Amendment “self‑executing,” meaning it directly changes the law without any additional legislation. Second, can a general ban on age discrimination quietly knock out a specific constitutional rule dealing with judges’ retirement. Third, what level of constitutional scrutiny should apply when the state draws age lines for who can hold judicial office.
The Appellate Division chose not to resolve all of those issues in its March ruling and stressed that repeals by implication are “distinctly not favored,” a stance laid out in the court’s March opinion.
For now, the high court has reserved judgment and will issue a written decision in the coming weeks or months. Until that opinion lands, the age‑70 retirement rule stays in force and certification remains the only way for judges to keep working past that birthday. If the Court of Appeals leaves the rule intact, any change will almost certainly have to come from lawmakers or the voters. If the court strikes the rule, the state’s judicial staffing and commission practices could shift quickly, as noted by Courthouse News Service.
