As I spelled out in this Confirmation Tales post, a federal judge becomes eligible to retire from regular active service when he satisfies what is commonly known as the Rule of 80: The judge’s age in years plus his years of federal judicial service (in Article III life-tenured positions) must equal 80 or higher. Plus, he must be at least 65 and must have at least 10 years of federal judicial service. Fractional years don’t count.
A judge can fully retire, or he can retire from regular active service but continue to serve in “senior status.” In this post, I will focus on the latter option—senior status—and present the factors that would affect a judge’s decision whether to stay in regular active service or move to senior status. I will focus here on appellate judges, though most of the considerations are the same for district judges.
Here are the factors that cut in favor of selecting senior status:
- Higher net pay. While a senior judge receives the same salary as an active-service judge, federal law exempts him from paying FICA (Social Security and Medicare) taxes on his salary. (See 26 U.S.C. § 3121(i)(5) and 42 U.S.C. § 409(h).) For 2025, FICA taxes on the salary of a federal appellate judge in active service total more than $15,000. (Some states also exempt a senior judge’s salary from state income tax.)
- Lighter and more flexible workload. A senior judge needs to carry only 25% of the workload of a judge in regular active service. He is also free to carry a full workload (or anything between 25% and a full workload), and he may vary the workload by year.
- Relocating out of circuit. A judge in senior status is no longer required to keep his residence within the bounds of the circuit. (A move to a state with no income tax or a lower income tax would also increase the judge’s net pay.)
- Unlimited income from teaching. Judges in regular active service can earn outside earned income of no more than 15% of their salary. For senior judges, there is no limit on the outside earned income they can earn from approved teaching. (See 5 U.S.C. § 13144(b)(2).)
- Overall ideological composition of the court. If a judge expects that the president will replace him with a successor of a similar ideology, taking senior status will keep his seat well occupied for years to come and will enable the overall composition of the court (active judges plus senior judges) to shift somewhat in his direction. A judge who takes senior status will also not have to fear that his death will give a later president the opportunity to swing the court in the other direction.
Here are the factors that cut in favor of remaining in an active judgeship:
- Lead role in panel decisions. On appellate panels, the judge who has been in active status the longest—i.e., who has the most seniority (a term that should not be confused with senior status)— presides over oral argument, leads the discussion at conference, and assigns opinions. An appellate judge who meets the Rule of 80 is likely to be the presiding judge on most of the panels on which he sits and, after years in which he was much more often a junior member of a panel, might be reluctant to give up the influence of that position. (This factor is somewhat offset by the deference that some active judges give senior judges.)
- Participation in en banc proceedings. Judges in active status take part fully in the court’s en banc deliberations. (Circuit rules and practices vary on the role that senior judges can play in en banc matters.)
- Stature. In an article on senior status, senior federal judge Frederic Block speculates that there are also some judges who are “psychologically challenged” to remain in active status: “There are those who simply have a difficult time accepting the label ‘senior’ as compared to ‘active.’ … These judges somehow feel that they will become lesser judges.” Relatedly, a judge might fear that by taking senior status he will become less attractive to future law clerks or be perceived by others as being in decline.
- Ideological composition of the en banc court. If a judge expects that the president will replace him with a successor of a very different ideology, he might worry that the appointment of his successor will tip the balance of the court in the wrong direction. (That worry is less if the court is already heavily one way or the other.)