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Friday, September 29, 2023

A Painfully Timely Paper on Aging and, in This Case, the Judiciary

Public discussions of aging high officials seem especially prone to be subject to an enormous amount of bullshitting--including, sometimes, on the part of experts on whom the public ought to be able to rely. Sometimes, and perhaps particularly when it comes from gerontologists and other relevant medical experts, one reason for this appears to be the same thing that drove some questionable, or questionably overconfident, statements from public health officials in recent years: a concern about messaging, even if that concern means massaging the truth. Sometimes, it appears to be a worry about encouraging (or being accused of) ageism. The former is an understandable concern, of course, and the latter is predictively reasonable, as that cudgel has been and will be employed frequently and sometimes utterly insincerely for purposes of batting away concerns. It is accurate to say that every individual's lifespan and the effect of aging on them is better evaluated individually than statistically. It is absurd to deny that aging frequently affects cognitive function and that the older one gets, the closer one's clock runs to zero. It is pure bullshitting to assert that age is "no more relevant than eye color," to share the paraphrased assessment of one academic. (I am unsurprised that this expert is described as specializing in public health as well as aging. It's understandable that public health officials should care about messaging and that a subset of public health experts should care about how to study and design effective messaging. But the public-facing aspects of that discipline strike me as both necessary and clearly its least reliable element.) 

It is thus useful, on the principle that we are more likely to speak plainly and honestly about the subjects that strike us as less urgent, immediate, or important, to see a new paper titled "The Effects of Lifetime Tenure and Aging in the United States Federal Judiciary," by political scientists Ryan Black, Ryan Owens, and Patrick Wohlfarth. Here's the abstract:

Many federal judges in the United States are older and serving longer than ever before. Lifetime tenure combined with advances in human life expectancy have contributed to an increasingly aged judiciary. Yet, this aging comes with likely costs—the effects of cognitive aging on the behavior of federal judges. We apply prevailing neuroscience theories of human cognitive aging to the work of federal judges and examine the potential costs of aging to judicial behavior. We show empirically that aging influences how judges behave across a variety of judicial tasks. Aged judges require more time than their younger colleagues to draft their opinions. Moreover, despite taking more time to complete tasks, older judges increasingly turn to simplistic cognitive shortcuts when bargaining with their colleagues over opinion content, interpreting law, and casting their votes. These findings raise important normative questions about lifetime tenure and the resources the federal government currently allocates to the judiciary.

And here is some relevant material from the article:

Generally speaking, executive functioning relates to the cognitive skills necessary to reason and moderate behavior. As Harada, Love and Triebel (2013, 741) put it, executive functioning involves “the ability to self-monitor, plan, organize, reason, be mentally flexible, and solve problems.”...Studies show that executive functioning declines with age. Indeed, “[t]here is a sharp decline in executive functioning abilities after the age of 60” (Drag and Bieliauskas 2010, 80). In particular, working memory declines with age....Cognitive aging also leads to a decline in reasoning abilities. Reasoning ability touches on logical thinking and the ability to solve problems and draw appropriate conclusions. Powell (1994) finds that reasoning is an “early casualt[y] of the aging process” (86). Salthouse (1991) finds significant age-related declines in inductive reasoning (among other aspects of cognition)....Aged judges may also rely on cognitive heuristics more than younger judges.

Note that the last sentence is based on an assessment of likelihood--that judges who, for age-related reasons, are slower to process information, but retain the same caseload and expectations, may turn to cognitive short-cuts. It is also relevant to the study because it is testable. What is related but less testable and, to my mind, more important is the question of self-monitoring and mental flexibility. Ideally, a judge or other official will be adaptable and respond differently to different situations and changing facts. But if that individual is increasingly inflexible and non-adaptive, that fact will not be readily apparent to outside observers, who may see it as consistency and determination rather than as a symptom of impaired functioning. 

It's an interesting paper. It caught my eye earlier this week. But is no accident that I post it on the morning that Senator Dianne Feinstein's death has been announced. Of course her health and mortality were a question to be evaluated on an individual basis. But also of course, past a certain age the possibility that decline might occur or had already begun, and that death would arrive sooner rather than later, was real and could be predicted with greater certainty based on the simple fact of her age than her eye color.

Happily, judges and senators are easily replaceable. Things get a little trickier with officials occupying offices headed by a single person. In both cases decline is harder to spot, especially to the degree that these officials are surrounded and managed by staff, and far from guaranteed. But neither ought it to be a surprise, and it is certainly not the role of any expert to treat its possibility as being utterly random and no more predictable on the basis of age than on the basis of eye color. Nor is it the duty of any respectable flack or member of the public to engage in the pretense that any mention of such concerns is either baseless or bigoted. Senator Feinstein's death is appropriately big news; but it is hardly surprising news, and neither, given her age, was her cognitive decline. Neither Feinstein's death nor her decline leading up to it were or should have been any more surprising than the possibility that any or all of, say, President Biden, Donald Trump, Justice Thomas, or Judge Newman might already suffer from cognitive decline, or die and/or undergo significant cognitive decline some time in the next few years. Pretending otherwise, for purposes of voting or news commentary, is deceptive--or self-deceptive, and self-deception is one of the major risks of bullshitting--and terrible planning.

To anticipate and discuss this is neither morbid nor disrespectful. To the contrary, bullshitting on the question seems more disrespectful and in some ways more ageist to me than blunt discussion. Very little of the commentary concerning Justice Ginsburg, prior to her death, said simply and squarely that while her death at any particular moment could not be predicted, it was becoming ever more likely that she would die fairly soon, even though the fact was apparent. Is it really more respectful of an older individual's humanity and agency to treat his or her advanced age, and likely decline or death, as being as random as chance, so that one could proceed to argue and pen op-eds and tweets about what ought to be done as if she were not in the room, so to speak, and had become a mere object rather than a subject? Clarence Thomas and Samuel Alito's ethics have become a lively public concern. But is there no room to note the fact that they are 75 and 73, respectively, and quite mortal, rather than (for those who defend and celebrate them) treating them as presumptively undying, uncrumbling edifices? I think it would have been far more respectful to Feinstein to say that her guaranteed vote was more important to the commenter than her humanity or well-being or capacity to reason freely, rather than to engage in the pretense that she was fine, a pretense that was kept up for an unknown period of time before people began going public with their concerns. (One might add that finally deciding to share those concerns publicly may have been as much a dehumanizing matter of worrying about securing her replacement than a respectful acknowledgment that she was failing. We will know more when, as seems nearly inevitable, more comes out about how long and how serious her decline had been, now that her status is clear and her political power at an end. Nil nisi bonum notwithstanding, people are far more willing to share tales of dead politicians and judges than live ones.) It would be more respectful to Biden, and more morally transparent, to say that given the degree to which the staff can run things, the increasing possibility of his decline or death in the relatively near future are less important than which party holds the presidency, and thus that one doesn't really care how he's doing. One can agree or disagree with the position, but that is the position, and nonsense about eye color and the unknowability of the future should be treated as such.      

Posted by Paul Horwitz on September 29, 2023 at 10:51 AM in Paul Horwitz | Permalink


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