Cognitive assessment in law

In recent years, conversations surrounding the need for cognitive assessment in the legal community have grown, particularly with regard to age-related cognitive decline in the judiciary (Kaufman, Reference Kaufman2021). Due to both the cognitive demands of judicial decision-making and the current lack of cognitive assessment for aging judges—especially those at the federal level, who typically hold lifetime appointments—the issue of cognitive decline in aging judges holds significant implications for the legal and justice system.

Based on the theories of legal formalism and legal realism (Posner, Reference Posner1986), the cognitive capacity of judges undoubtedly affects judicial decision-making. Legal formalism theorizes that judges apply legal reasoning that is logical, rational, deliberative, and mechanical. Legal realism theorizes that individual psychological, political, and social factors influence judicial decisions. Both theoretical approaches imply that judges should possess certain cognitive skills to serve fairly and honorably, including:

1. 1. Critical reasoning skills: judges must apply the rules of law and should not let their own personal assumptions interfere with legal proceedings.

2. 2. Decision-making skills: judges must be able to weigh facts, apply the law, and make quick decisions.

3. 3. Listening skills: judges must pay close attention to what is being said, in order to evaluate information.

4. 4. Reading comprehension: judges must be able to evaluate and distinguish important facts from large amounts of complex information.

5. 5. Writing skills: judges write recommendations or decisions on appeals or disputes. They must be able to write their decisions clearly, so that all sides understand the decision.

With the average age of America’s federal judges now at 69 years (Yoon, Reference Yoon, Epstein and Lindquist2017)—older than any other time in the country’s history—neuroscience may provide insight into cognitive assessment for aging judges. Based on current-day standards of brain connectivity which model brain function as coordinated cognitive networks distributed across specialized brain areas, disruption of these networks varies in their cognitive-behavioral effects (Buckner & Krienen, Reference Buckner and Krienen2013). Such network disruption can be focal, impacting local nodes that can impact specific domains immediately. Alternatively, they can be diffuse, in which degradation of the brain is non-specific and generalized (Rodrigo et al., Reference Rodrigo, Naggara, Oppenheim, Golestani, Poupon, Cointepas, Mangin, Le Bihan and Meder2007). Based on the localization of neurological damage and whether the affected domain is functionally independent or interdependent of other neural domains, the effects of age-related neurological damage are variable; a small lesion such as a stroke in a specific location can cause a major network disruption, but generalized degradation may be compensated for—often for a relatively long period of time—until a critical tipping point (Hartwigsen, Reference Hartwigsen2018).

Such neurological degradations can be measured via standardized neuropsychological evaluations, which can screen across a clinical framework of six cognitive domains:

1. 1. Executive function, consisting of planning, decision-making, working memory, responding to feedback, inhibition, and flexibility. Exemplars of cognitive tests used to evaluate executive function include the Trail Making Test (Reitan, Reference Reitan1955) and the Wisconsin Card Sorting Test (Berg, Reference Berg1948).

2. 2. Attention is a multidimensional construct, consisting of sustained attention, divided attention, selective attention, and processing speed. Evaluation of attention and processing speed may include the digit span test and the Stroop test (Stroop, Reference Stroop1935).

3. 3. Perceptual-motor function, consisting of visual perception, visuo-constructional reasoning, and perceptual-motor coordination. Visuospatial evaluation may include tests such as the Rey-Osterrieth Complex Figure test (Osterrieth, Reference Osterrieth1944).

4. 4. Language, consisting of object naming, word finding, fluency, grammar and syntax, and receptive language. Evaluating for language includes assessing for verbal fluency and may include the Boston Naming Test (Kaplan et al., Reference Kaplan, Goodglass and Weintraub2001).

5. 5. Learning and memory, consisting of free recall, cued recall, recognition memory, semantic and autobiographical long-term memory, and implicit learning. Evaluation in this area may include the California Verbal Learning Test (Delis et al., Reference Delis, Freeland, Kramer and Kaplan1988).

6. 6. Social cognition, consisting of the recognition of emotions, theory of mind, and insights. Evaluation of affect includes measures such as the Florida Affect Battery (Bowers et al., Reference Bowers, Blonder and Heilman1998) and the Emotion Evaluation Test (Westerhof-Evers et al., Reference Westerhof-Evers, Visser-Keizer, McDonald and Spikman2014).

These domains are variably addressed in neuropsychological screening measures such as the Mini-Mental State Exam (MMSE) and the Montreal Cognitive Assessment (MoCA) (Folstein et al., Reference Folstein, Folstein and McHugh1975).

For lawyers, and especially the judiciary, the professional requirements of the legal field place emphasis on “higher-order” cognitive abilities associated with executive function. Thus, executive dysfunction—such as that associated with aging—can result in perseveration, disinhibition, poor problem-solving, rule violations, poor organization, mental inflexibility, and errors due to poor self-monitoring (Fjell et al., Reference Fjell, Sneve, Grydeland, Storsve and Walhovd2017). In particular, aging principally affects fluid abilities which may present as declines in processing speed, learning efficiency, and the free recall of newly learned material, as well as a need for more effort when focusing attention (Salthouse, Reference Salthouse2012). Such cognitive outcomes may inhibit a judge’s ability to fairly and honorably adjudicate. On the other hand, crystallized abilities—such as vocabulary usage and “expert knowledge”—remain relatively stable and have been reported to be preserved through the age of 80 (Park & Bischof, Reference Park and Bischof2013).

A notable distinction is to be made for dementia, which is a collection of symptoms related to cognitive decline. Alzheimer’s disease, a progressive neurodegenerative disorder of older adults, is the most common cause of dementia and is considered an age-related disease. Alzheimer’s disease is characterized by the accumulation of abnormal proteins that lead to neuronal cell death, brain volume loss, and psycho-behavioral-cognitive decline, and is projected to affect nearly 14% of the United States population by 2060—up from 6.1% in 2021 (Alzheimer’s Association, 2021). In its most common presentation, Alzheimer’s disease affects memory functions early and most severely; however, executive dysfunction is also commonly seen. Given the disease’s increasing prevalence and worsening severity in aging populations, Alzheimer’s disease needs to be addressed with regard to the aging judiciary.

Consequently, questions of how to go about addressing the dysfunctional cognitive effects of Alzheimer’s and other similar diseases remain to be answered at the intersection of neuroscience and the law. Such questions include:

1. 1. Does age-related cognitive impairment erode trust in the justice system?

2. 2. Is there a moral imperative to monitor the aging judiciary?

3. 3. What is the harm associated with assessment and/or intervention? What is the benefit?

4. 4. Should there be term limits for judges?

5. 5. Should there be periodic monitoring of judges, and if so, should it be age-based?

6. 6. What is the most efficient and fairest way to assess judges?

Imposing a term limit on federal judges would require a Constitutional amendment, as Article III of the Constitution stipulates that the position is a lifetime appointment. There have been notable attempts to implement some form of term limits in the past, including the “Supreme Court Renewal Act” proposed by a Cornell law professor in 2005 (Teitelbaum, Reference Teitelbaum2006). Yet, these ultimately futile efforts are generally advanced to address issues such as perceived politicization of the courts, stagnation, or an increasing disconnect between justices’ positions and public opinion. Little impetus for such movements has been centered around the potential implications of a graying court for justices’ cognitive capacities.

Vociferous pushbacks consistently arise against the move for term limits for justices, often echoing arguments made against imposing term limits for members of Congress—that they do not increase representativeness of the political body, they do not inhibit the effects of partisan polarization, and they contribute to unnecessary loss of institutional memory (Carey et al., Reference Carey, Niemi, Powell and Moncrief2006; Gruhl, Reference Gruhl1997; Kousser, Reference Kousser2005; Olson & Rogowski, Reference Olson and Rogowski2020). Accordingly, we do not view the implementation of term limits for the judiciary to be a viable mechanism to address potential concern of cognitive decline among justices. Nonetheless, a norm of federal justices regularly taking and disclosing the results of their cognitive assessments could help to assuage concerns about their mental capacities to fulfill their obligations to the court. This pattern can aid to puncture the veil of secrecy that clouds federal justices—particularly those on the Supreme Court. The judiciary has been intended from its inception to be relatively insulated from public scrutiny. Yet, a combination of controversial rulings and possible scandals—the overruling of Roe v. Wade, the end of affirmative action, and Justice Clarence Thomas’ possible ethics violations, to name a few—has raised renewed questions about the court’s credibility in the eyes of the public (Liptak, Reference Liptak2023).

Of course, as non-elected officials serving lifetime appointments, justices face little incentive to become more revelatory in order to increase public appeal. However, they may find that doing so may help to mute calls for more radical departures from their status quo, such as court packing (Phillips, Reference Phillips2020). Ultimately, it is a scant prospect that members of the judiciary reach a point where they voluntarily consent to regular taking and sharing of cognitive assessments, despite the potential value of this process for ensuring the judiciary is continuously staffed with people capable of meeting the rigorous challenges of adjudicating the law. Perhaps the odds of such a process becoming a reality are higher among political figures who rely directly on the support of voters for the maintenance of their positions.

Cognitive assessment in medicine

As of 2020, there exist over 1 million licensed physicians in the United States, including both MD and DO degree-holding physicians (AAMC, 2019). According to the United States Census Bureau, the mean age of physicians is 51.7 years, with 30% of all physicians over the age of 60 (Young et al., Reference Young, Chaudhry, Pei, Arnhart, Dugan and Simons2021). Previous studies have found that 12–18% of people aged 60 years or above have some features of mild cognitive impairment, and 10–15% of this population will develop dementia each year (Eshkoor et al., Reference Eshkoor, Hamid, Mun and Ng2015).

The duties of a physician—to provide medical care to patients, practice safe and quality medicine to those in need, and manage in a professional manner and with high cognitive function—may be threatened by cognitive impairment. As of today, physicians over the age of 65 are subject to multiple safeguarding policies against their own cognitive decline. The Centers for Medicare & Medicaid Services require their participating physicians to annually assess cognitive function and driver safety. Physician self-diagnosing and reporting is mandatory to retain licensing and credentialing by the state. Some states require medical peers to report impaired doctors, and increasing numbers of hospitals are requiring mandatory screenings, with some requesting medical records of the practitioner as proof (Ganguli et al., Reference Ganguli, Rodriguez, Mulsant, Richards, Pandav, Bilt, Dodge, Stoehr, Saxton, Morycz, Rubin, Farkas and DeKosky2004).

Considering the association between aging and deterioration in cognitive function, it is expected that older physicians may find difficulty practicing medicine at high standards comparable to their younger counterparts—especially for surgical procedures. Research has found that older surgeons performing carotid endarterectomy—a surgery performed to restore normal blood flow in the carotid artery—had higher patient mortality rates than their younger counterparts (O’Neill et al., Reference O’Neill, Lanska and Hartz2000). Another study found that laparoscopic inguinal herniorrhaphy (a type of hernia repair) performed by older surgeons led to higher hernia recurrence rates (Neumayer et al., Reference Neumayer, Gawande, Wang, Giobbie-Hurder, Itani, Fitzgibbons, Reda and Jonasson2005).

It is also important to note that memory loss is part of the deterioration of cognitive function. It would not be unexpected to find that older physicians have less declarative medical knowledge (Choudhry et al., Reference Choudhry, Fletcher and Soumerai2005). However, some studies suggest otherwise, such as one finding that procedures conducted by obstetricians who have practiced for more decades resulted in fewer maternal complications (Epstein et al., Reference Epstein, Srinivas, Nicholson, Herrin and Asch2013).

Considering the potential risks of having older physicians practice with diminished cognitive function, the American Medical Association (AMA), the American College of Surgeons, and the Society of Surgical Chairs have endorsed voluntary or mandatory cognitive assessment by the age of 65 (Devi et al., Reference Devi, Gitelman, Press and Daffner2021). These endorsements faced immediate opposition, stemming from concerns over age discrimination. Older physicians in the United States cannot legally be singled out for cognitive testing. Therefore, it is not a common practice to perform screening of cognitive health for older physicians and healthcare providers. However, other countries, such as New Zealand and Canada, have already started to implement similar screenings to some degree (Devi et al., Reference Devi, Gitelman, Press and Daffner2021).

Recently, cognitive health in older practitioners has received more attention and action. Several institutions in California have the capabilities to screen older physicians’ cognitive health, such as the UC San Diego Medical Center, Scripps, and Stanford. Hospitals such as the Yale New Haven Hospital implemented the Late Career Practitioner Policy aimed to test older physicians for their vision, fluency in language usage, executive function, speed and accuracy under decision pressure, and other measures associated with cognitive health (Burling, Reference Burling2020). Within a period of time, the New Haven Hospital screened 141 medical personnel, including physicians. Of those screened, 24% of 141 showed minor abnormalities and were allowed to re-credential. Eighteen of the 141 personnel, all over the age of 70, showed cognitive deficits. Ultimately, 6 of those 18 practitioners experiencing cognitive decline retired, while the remaining 12 consented to limit their practice under close supervision (George, Reference George2020).

What implications can be drawn from the health domain to inform this subject in the field of politics? First, while there is a positive association between aging and cognitive impairment, singling out older individuals for cognitive assessment runs afoul of the law. A universal norm of cognitive assessment, however, would circumvent this legal issue. Related to this first point, the impetus for medical institutions to subject physicians to regular cognitive screenings is clear. Ensuring that health professionals remain up to the demanding task of attending to the needs of their patients has literal life or death consequences. While the consequences may not be as clear-cut for political figures, their professional activities similarly have an inordinate influence on the well-being of the citizenry. Accordingly, framing the cognitive functioning of political elites as a matter of transparency and public good may help to elide opposition to the practice. Again, in the absence of required cognitive assessment, creating a norm of expectation may be the path forward.

Cognitive-neuropsychological health in politicians

As with cognitive decline, mood disorders are frequent in older individuals and are expected to increase with significant population aging as well (Sajatovic et al., Reference Sajatovic, Strejilevich, Gildengers, Dols, Al Jurdi, Forester, Kessing, Beyer, Manes, Rej, Rosa, Schouws, Tsai, Young and Shulman2015; Valiengo et al., Reference Valiengo, Stella and Forlenza2016). Although there exist medical—and to a lesser extent, legal—standards of cognitive health and neuropsychological health in general, the interpretations of whether the resulting conclusions of these assessments are positive or negative (“good” or “bad”) can depend on the context in which cognitive and neuropsychological functioning is demanded. That is, beyond ensuring individuals are not a threat to themselves and the public, certain cognitive and neuropsychological states may be beneficial in some contexts and harmful in others. There exists a subjective area in which professionals—and particularly medical, legal, and professional workforce leaders—can exhibit mild cognitive or neuropsychological dysfunction that is actually beneficial, given a particular set of circumstances.

Drawing examples from famous leaders with manic-depressive traits who, from their mild neuropsychological illnesses, arguably had their leadership abilities and professional work enhanced in their respective situations, the same logic may possibly be applied to cognitive health. In the right circumstances and mild severities, cognitive dysfunction, deficits, and even impairment may neutrally and even positively affect leadership. There are nuanced considerations to whether or not certain cognitive conditions are considered “good” or “bad.” Among professionals in medicine, law, politics, and beyond, cognitive traits considered to be abnormal may be considered non-issues and even positive depending on the contexts in which they are to be applied. Such a concept will be explored through examples of neuropsychological illness, specifically depression and mania, enhancing leadership in certain contexts.

Extensive psychological research shows that there are some benefits to depression and the mood state of mania, such as enhanced leadership capabilities in times of crisis, greater expressions of creativity, and positive linkages between bipolar disorder and entrepreneurship (Barling & Cloutier, Reference Barling and Cloutier2017; Bowins, Reference Bowins2008; Ghaemi, Reference Ghaemi2012; Johnson et al., Reference Johnson, Madole and Freeman2018; Ludwig, Reference Ludwig1995; Zhao et al., Reference Zhao, Tang, Lu, Xing and Shen2022). Though leadership in non-crisis times has conventionally been accepted to be optimally provided by mentally healthy leaders, leadership during crises can benefit from manic-depressive leaders via four traits: realism and empathy from depression, and creativity and resilience from mania (Galvez et al., Reference Galvez, Thommi and Ghaemi2011). These traits may serve to enhance leaders’ capacity to overcome crisis-specific challenges and optimally serve their constituents.

Psychological studies spanning 40 years reveal that individuals with depression exhibit greater realism compared to the general non-depressed (“normal”) population (Allan et al., Reference Allan, Siegel and Hannah2007; Haaga & Beck, Reference Haaga and Beck1995; Moore & Fresco, Reference Moore and Fresco2012). Normal people tend to possess “positive illusion,” a tendency to be more optimistic than reality would support (Moore & Fresco, Reference Moore and Fresco2012; Taylor et al., Reference Taylor, Kemeny, Reed, Bower and Gruenewald2000). This is generally considered a beneficial trait in everyday life. However, in times of crisis, such optimism can be problematic for leaders on whom people, institutions, and states depend. Although some may otherwise consider it pessimism, enhanced realism from depression can facilitate leaders’ consideration of suboptimal factors and even worst-case scenarios. This helps them to effectively avoid pitfalls and thus come closer to achieving their leadership goals. Documented examples of depressive realism include Abraham Lincoln regarding the Civil War and slavery (Shenk, Reference Shenk2005), and Winston Churchill regarding the rise of Nazism (Moran, Reference Moran1966). Both leaders, popularly revered today, had severe depression with enhanced realism that would have been beneficial in considering—and importantly, avoiding—plans that could have resulted in unnecessary risk, deaths, and defeat.

Empathy is another such benefit amplified by depression. Research indicates that, compared to non-depressed persons, people with depression have more empathy toward others (Galvez et al., Reference Galvez, Thommi and Ghaemi2011). A leader can capitalize on this by intuitively finding unifying messages and themes to organize people together toward a common goal (Pauley & McPherson, Reference Pauley and McPherson2010). Examples include Martin Luther King Jr. and Mahatma Gandhi, both of whom experienced significant depression (Ghaemi, Reference Ghaemi2012; King, Reference King2023). Their nonviolent politics can be viewed as a politics of radical empathy.

One characteristic of mania—a condition in which an individual’s mood and energy may be abnormally elevated—is creativity (Akiskal & Akiskal, Reference Akiskal and Akiskal2007; Soeiro-de-Souza et al., Reference Soeiro-de-Souza, Dias, Bio, Post and Moreno2011), which can enhance leaders’ decision-making. Commonly associated with artists and writers (Jamison, Reference Jamison1989), mania enables leaders to challenge the status quo and find novel approaches to achieve their goals. Such creativity can engender both novel solutions and the posing of novel questions. Greater creativity enables leaders to overcome traditional, long-standing barriers to their goals. A prominent example is Ted Turner, the entrepreneur and television producer diagnosed with bipolar illness, who revolutionized the news and cable industries (Ghaemi, Reference Ghaemi2012; Napoli, Reference Napoli2020).

Resilience is another characteristic enhanced by mania that may benefit leaders. Leaders often experience challenges and failures, and effective leadership demands the ability to recover from such setbacks; this is the definition of resilience. One protective factor associated with mania is hyperthymic temperament (Galvez et al., Reference Galvez, Thommi and Ghaemi2011), which is associated with—among other traits—a strong sense of humor, future orientation, and hopefulness. These enhanced qualities enable individuals experiencing mania to be more resilient and “bounce back” faster from adversity, providing leaders with the stamina to lead through crises. Franklin Roosevelt, for example, likely had hyperthymia (Ghaemi, Reference Ghaemi2012; Janiri et al., Reference Janiri, De Rossi, Kotzalidis, Girardi, Koukopoulos, Reginaldi, Dotto, Manfredi, Jollant, Gorwood, Pompili and Sani2018), which may have aided him in guiding the United States through the generation-defining crises of the Great Depression and the onset of World War II.

However, there are obvious harms to severe mental illness in leadership. An important example is Adolf Hitler’s diagnosed manic-depression, which was worsened by daily intravenous amphetamine treatment (Ghaemi, Reference Ghaemi2012; Heston & Heston, Reference Heston and Heston1979). Accordingly, it is imperative that the idea of neuropsychological illness and cognitive deficiency being context-dependent must be accompanied by a strict emphasis on ensuring individuals are neither a threat to themselves nor to the public.

In sum, manic-depressive illness, especially when mild, may promote important traits that are beneficial for crisis leadership. Beyond world-defining events, manic-depressive illness can promote qualities that engender successful leadership in the medical and political fields, including realism, empathy, creativity, and resiliency. Thus, addressing cognitive assessment and dysfunction in the workforce—particularly in fields with the potential for relative crisis—may not entail a simple binary judgment between the presence or absence of cognitive deficits. Rather, as exemplified by the aforementioned examples of manic-depression and crisis leadership, certain cognitive deficits may prove to be beneficial in certain circumstances, suggesting the need for more holistic cognitive assessments that account for both people’s cognitive states and their work environment.

Actionable recommendations

With an ever-aging population and workforce, cognitive health is becoming increasingly important. In the fields of medicine, law, and politics, cognitive assessments are recommended to ensure professionals of these disciplines continue to uphold their direct and significant responsibilities toward individual and societal health, functioning, and progress. The fields of law and medicine have made significant progress on this issue. Developments in these fields can and should inform the issue in the political sphere.

We therefore recommend that cognitive assessments for politicians are appropriate and necessary. The assessments should be made across-the-board, without regard to the age of the politician. The assessments should be incorporated into a standard set of disclosures for political candidates running for office. Initial implementation is most appropriate for candidates for federal office.

The actual content of cognitive assessments for politicians should be developed by a multidisciplinary group led by neuropsychologists. The assessment should be more than a simple screening device (e.g., MMSE or MoCA) but substantially less than a full neuropsychological examination. All six standard cognitive domains should be addressed: executive function, complex attention, perceptual-motor function, language, learning and memory, and social cognition. Scoring can be on a simple pass-fail basis.

Results of a cognitive assessment can thus be disclosed by politicians, who may find it beneficial to incorporate a cognitive passing grade among a group of disclosures. Nevertheless, reluctance of politicians to engage in the assessment is to be expected. Implementation will require sustained efforts in bringing the issue to public attention. One might anticipate that there would be enthusiasm for the assessment among political candidates whose opponents have been subject to questions regarding their cognitive capabilities. Regardless, cognitive assessment for politicians is an issue whose time has come.