Would Modifying Supreme Court Justice Life Tenure by Ordinary Legislation Violate the Constitution's Good Behavior Clause?

When the Founders declared our independence from England, one of their grievances against the King was that he had "made Judges dependent on his Will alone, for the tenure of their offices."[1] Consequently, when establishing the federal judiciary, the Framers of the Constitution chose to insulate judicial tenure from political control. For instance, Alexander Hamilton stated in the Federalist Papers that federal judges could not be expected to uphold constitutional limitations on the federal government or protect individuals’ rights if they held temporary office at the whim of the political branches.[2] Hamilton also claimed qualified jurists would be disinclined to join and remain on the federal bench absent life tenure.[3]

To that end, Article III of the Constitution provides that U.S. Supreme Court Justices "shall hold their Offices during good Behaviour."[4] Although the Constitution does not define "good Behaviour,"[5] the Federalist Papers suggest that federal judges will be "secured in their places for life" so long as "they behave properly."[6] Likewise, the Supreme Court has stated repeatedly that federal judges enjoy life tenure and may not be removed from office except via impeachment.[7]

Because Congress has never removed a Supreme Court Justice by impeachment, Justices typically remain on the Court until they pass away or voluntarily leave the bench.[8]

Because Article III guarantees that Supreme Court Justices "shall hold their Offices during good Behaviour,"[9] many commentators agree that Congress could not impose a term or age limit for Supreme Court Justices without amending the Constitution.[10] However, some commentators dispute that modifying judicial tenure would require a constitutional amendment.[11] Emphasizing that Article III states that Justices "shall hold their Offices during good Behaviour" rather than "hold their Offices for life," these scholars interpret the Good Behavior Clause as a protection from partisan impeachment, rather than a guarantee of life tenure.[12] According to these commentators, so long as Justices enjoy tenure that is long enough to guarantee their decisional independence, and so long as Justices may continue to exercise judicial duties on the lower courts for the rest of their lives after their term expires, congressional modifications to judicial tenure would not violate the Good Behavior Clause.[13]

A court might reject that argument for several reasons. Beginning with the Constitution’s text,[14] it is not clear that a Justice barred from participating fully in the Court’s activities still "holds the Office" of Supreme Court Justice within the meaning of Article III.[15] If that is correct, a court could find that precluding Supreme Court Justices from hearing Supreme Court cases solely because they have served for a specified number of years or reached a certain age to be tantamount to removing Justices from office for reasons other than their "Behaviour" in contravention of the Good Behavior Clause.[16]

A court considering the constitutionality of a term or age limit might also examine the Constitution’s structure.[17] Article III grants the Supreme Court a unique constitutional status by differentiating the "inferior Courts" — that is, the lower federal courts created by Congress — from the "one supreme Court."[18] Thus, a court might hold that a Justice barred from hearing cases on the "one supreme Court" and relegated to hearing cases on the "inferior Courts" no longer "holds the Office" of Supreme Court Justice under the Good Behavior Clause.[19]

Historical sources also suggest that Congress cannot modify life tenure by statute. For instance, courts often consult the Federalist Papers when interpreting the Constitution.[20] The Federalist Papers indicate that the Good Behavior Clause "secure[s] [Supreme Court Justices] in their places for life" to ensure their "complete independence" from the political branches.[21] Thus, the Framers appear to have understood the Good Behavior Clause to preclude congressional modifications to judicial tenure.[22]

Additionally, while no court has considered whether a term or age limit statute would be constitutional because Congress has never enacted one,[23] the Supreme Court has interpreted the Good Behavior Clause to guarantee life tenure and curb legislative influence over the federal judiciary.[24] Thus, existing precedent may counsel against an interpretation of Article III that would authorize Congress to affect judicial tenure legislatively.

Some commentators argue that the Supreme Court’s 1803 decision in Stuart v. Laird supports the constitutionality of a term or age limit statute.[25] In Stuart, the Court considered whether the Constitution authorized Congress to require Supreme Court Justices to “ride circuit” — that is, spend a portion of each year hearing lower federal court cases.[26] The Court held that because the earliest Congresses had required Justices to ride circuit since the nation’s founding, longstanding acquiescence eliminated any doubts about the practice’s constitutionality.[27] According to some term limit proponents, if Congress can require Supreme Court Justices to spend a portion of each year hearing lower court cases, Congress could require Justices to spend the final years of their judgeships hearing lower court cases exclusively.[28]

Stuart does not appear to support that proposition, however.[29] Whereas the early Justices would perform circuit-riding duties in addition to hearing Supreme Court cases,[30] most term limit proposals would prevent Justices from ever hearing Supreme Court cases again, or would only allow retired Justices to hear Supreme Court cases to fill a vacancy on the Court. It is questionable whether a Justice barred from participating in most of the Court’s decision making still "holds the office” of Supreme Court Justice under the Good Behavior Clause.[31] Also, whereas the Stuart Court emphasized that Congress had required the Justices to ride circuit since the nation’s founding,[32] Congress has never required Justices to sit on the lower courts exclusively after a specified term.[33] Because the Supreme Court has indicated that legislative actions without historical precedent are particularly likely to be unconstitutional,[34] the lack of historical precedent for statutory term and age limits may counsel against their constitutionality.

[1] The Declaration of Independence (U.S. 1776). See also, e.g., United States v. Hatter, 532 U.S. 557, 567-69 (2001).

[2] See The Federalist No. 78 (Alexander Hamilton) ("That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch with possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.")

[3] See, e.g., id. ("[A] temporary duration in office, which would naturally discourage [qualified jurists] from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.").

[4] U.S. Const. art. III, § 1.

[5] See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 639-40 (2005) ("The Constitution does not directly address the question of what 'good Behaviour' means.").

[6] The Federalist No. 79 (Alexander Hamilton).

[7] See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955) (explaining that Article III courts "are presided over by judges appointed for life, subject only to removal by impeachment"”); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (plurality opinion of Brennan, J.) ("The 'good Behaviour' Clause guarantees that Art[icle] III judges shall enjoy life tenure, subject only to removal by impeachment."); United States v. Hatter, 532 U.S. 557, 567 (2001) (explaining that the Good Behavior Clause grants federal judges "the practical equivalent of life tenure").

[8] See, e.g., Daniel J. Meador, Thinking About Age and Supreme Court Tenure, in Reforming the Court: Term Limits for Supreme Court Justices 115 (2006) ("As a practical matter, only death or a voluntary act of the justice can terminate service on the Court."); Todd C. Peppers & Chad M. Oldfather, Till Death Do Us Part: Chief Justices and the United States Supreme Court, 95 Marq. L. Rev. 709, 721 (2012) (explaining that the House of Representatives has impeached one Justice since the Constitution’s ratification, whom the Senate ultimately acquitted).

[9] U.S. Const. art. III, § 1.

[10] See, e.g., David J. Garrow, Protecting and Enhancing the U.S. Supreme Court, in Reforming the Court: Term Limits for Supreme Court Justices 278 (2006) [hereinafter Garrow, Protecting and Enhancing] (claiming that "the overwhelming consensus of the critical commentary . . . indicates that only a change in the Constitution itself could properly convert Justices of the Supreme Court into simply lesser Article III federal judges"). See also, e.g., David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for a "Golden Parachute", 83 Wash. U. L.Q. 1397, 1421 (2005) [hereinafter Stras & Scott, Golden Parachute] ("The Constitution prevents Congress from tinkering with life tenure through the ordinary legislative process.”); James E. DiTullio & John B. Schochet, Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court With Staggered, Nonrenewable Eighteen-Year Terms, 90 Va. L. Rev. 1093, 1097 (2004) ("Ending life tenure would require a constitutional amendment.").

[11] See, e.g., Roger G. Cramton, Reforming the Supreme Court, 95 Cal. L. Rev. 1313, 1334 (2007); Alan B. Morrison, Opting for Change in Supreme Court Selection, and for the Chief Justice, Too, in Reforming the Court: Term Limits for Supreme Court Justices 209 (2006); Sanford Levinson, Life Tenure and the Supreme Court: What Is To Be Done?, in Reforming the Court: Term Limits for Supreme Court Justices 377 (2006).

[12] See, e.g., Levinson, supra note 11, at 379 ("[N]either the text nor the presumed purpose of [Article III] rules out the following argument: The 'good behaviour' clause guarantees that judges, whatever their term of service, cannot be removed from office for partisan political reasons that would, by definition, threaten the very idea of judicial independence . . . [O]ne could argue that the 'good behaviour' clause is a protection against partisan impeachment, but most definitely not an assignment of the office literally for life.").

[13] See, e.g., Cramton, supra note 11, at 1334 (arguing that Congress could impose term limits legislatively so long as Justices whose terms expired continued to enjoy "life tenure on a constitutional court" and the term was "lengthy, fixed in time, non-renewable and [could not] be affected by the political branches of government").

[14] See, e.g., NLRB v. New Vista Nursing & Rehab., 719 F.3d 203, 221 (3d Cir. 2013) ("When interpreting the Constitution, 'we begin with its text.'") (quoting City of Boerne v. Flores, 521 U.S. 507, 519 (1997)).

[15] See, e.g., Stras & Scott, Golden Parachute, supra note 10, at 1418 (arguing that "any plan that exiles Supreme Court Justices to the lower courts after serving a term of years or reaching a certain age would violate the Constitution" because "the essential powers and duties of a ‘judge’ include the power to adjudicate disputes that come before the court"); William Van Alstyne, Constitutional Futility of Statutory Term Limits for Supreme Court Justices, in Reforming the Court: Reforming the Court: Term Limits for Supreme Court Justices 391 (2006); Richard A. Epstein, Mandatory Retirement for Supreme Court Justices, in Reforming the Court: Reforming the Court: Term Limits for Supreme Court Justices 416 (2006).

[16] See Stras & Scott, Golden Parachute, supra note 10, at 1404, 1407 (arguing that "[w]hatever misbehavior meant at the founding, it did not include serving eighteen years on the bench or turning seventy").

[17] See, e.g., Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1656 (2020) (examining the Constitution’s structure as an aid to constitutional interpretation).

[18] See U.S. Const. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." (emphasis added)).

[19] See, e.g., Epstein, supra note 15, at 417 ("[Article III’s text] make[s] tolerably clear that the appointment for each judge is to a particular office, and that service in that office is what is guaranteed for the length of good behavior. The Constitution’s reference to judges on both the Supreme and inferior courts suggests that judges are appointed to a single position, and not to the bench . . . ."); Stras & Scott, Golden Parachute, supra note 10, at 1418 (arguing that "[b]ecause the essential powers and duties of a 'judge' include the power to adjudicate disputes that come before the court, any plan that exiles Supreme Court Justices to the lower courts after serving a term of years or reaching a certain age would violate the Constitution"); Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J.L. & Pub. Pol'y 769, 865 (2006) (arguing that the Constitution "contemplates a separate office of Supreme Court Justice to which individuals must be appointed for life and not merely for eighteen years").

[20] See, e.g., Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016).

[21] The Federalist No. 78 (Alexander Hamilton); The Federalist No 79 (Alexander Hamilton). See also United States v. Hatter, 532 U.S. 557, 567 (2001) (explaining that granting federal judges "the practical equivalent of life tenure . . . helps to guarantee what Alexander Hamilton called the 'complete independence of the courts of justice'").

[22] See, e.g., Stras & Scott, Golden Parachute, supra note 10, at 1402-03 ("The debate at the founding gives no indication that Congress enjoys the power to modify life tenure. For example, Alexander Hamilton in the Federalist Papers and the author of the 'Brutus' essays disagreed sharply over the virtues of life tenure, but neither doubted that the proposed Constitution required it."); Van Alstyne, supra note 15, at 390 (arguing that the founding generation would not have interpreted Article III to allow term limits).

[23] See, e.g., Stephen B. Burbank, Alternative Career Resolution II: Changing the Tenure of Supreme Court Justices, 154 U. Pa. L. Rev. 1511, 1512-13 (2006).

[24] See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955) (explaining that Article III courts "are presided over by judges appointed for life, subject only to removal by impeachment"); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (plurality opinion of Brennan, J.) ("The 'good Behaviour' Clause guarantees that Art[icle] III judges shall enjoy life tenure, subject only to removal by impeachment."); United States v. Hatter, 532 U.S. 557, 567 (2001) (explaining that the Good Behavior Clause grants federal judges "the practical equivalent of life tenure).

[25] See Cramton, supra note 11, at 1333-34.

[26] See 1 Cranch 299 (1803). See generally David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 Minn. L. Rev. 1710 (2007) (discussing circuit riding); Steven G. Calabresi & David C. Presser, Reintroducing Circuit Riding: A Timely Proposal, 90 Minn. L. Rev. 1386 (2006) (same); Joshua Glick, On the Road: The Supreme Court and the History of Circuit Riding, 24 Cardozo L. Rev. 1753 (2003) (same).

[27] See 1 Cranch at 309 ("Another reason for reversal is, that the judges of the supreme court have no right to sit as circuit judges, not being appointed as such, or in other words, that they ought to have distinct commissions for that purpose. To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction.").

[28] See Cramton, supra note 11, at 1333-34.

[29] See, e.g., Van Alstyne, supra note 15, at 395 (emphasizing that the constitutionality of term limits was not "before the Court" in Stuart).

[30] See, e.g., Glick, supra note 26, at 1797.

[31] See Calabresi & Lindgren, supra note 11, at 863 ("[Stuart] suggests that Supreme Court Justices can in the same year have duties on both the Supreme and inferior federal courts. It does not necessarily suggest that one can further carve up a Justice’s total term and allocate the first eighteen years of it to Supreme Court business and the remainder to lower federal court cases.”); Van Alstyne, supra note 15, at 394-95 (arguing that "nothing about [Stuart] suggests that should Congress so desire, it might also impose some fixed limit to a Supreme Court justice’s full and equal participation in the business of that Court, excluding them thereafter from all essential powers to be exercised by that Court, and switch them to . . . duties on some circuit or some district court or courts, until such time as they might thereafter resign, retire, die, or be impeached").

[32] See 1 Cranch at 309.

[33] See, e.g., Judith Resnik, Democratic Responses to the Breadth of Power of the Chief Justice, in Reforming the Court: Reforming the Court: Term Limits for Supreme Court Justices 181 (2006); Epstein, supra note 15, at 416.

[34] Cf., e.g., Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2201 (2020) ("'Perhaps the most telling indication of [a] severe constitutional problem . . . is [a] lack of historical precedent' to support it." (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010)0).