Reportedly Biden is considering calling for term limits on SCOTUS Justices. It’s a good idea, but offhand I would think it would need a Constitutional amendment, which makes it completely impractical. Anyone know the straight dope on this question?
Article 3 section 1 says that Judges “shall hold their offices during good Behavior”, which seems unhelpfully vague.
My understanding is that during good behavior meant barring criminal behavior, the appointment was for life. Seems to me an amendment would be needed, and we will never see another amendment in our lifetimes.
Well, that’s certainly how it’s been interpreted as long as I can remember. Was that explicitly stated at the Constitutional Convention, or was it interpreted to mean that at some later date? Seems reasonable to me that since the Constitution does provide a procedure for the impeachment of Judges, “good Behavior” means “until impeached”.
IIRC there’s been at least one federal judge (not SCOTUS justice) that was removed from office due to senility or alcoholism. That being said term limits or mandatory retirement would definitely need a constitutional amendment. Maybe something could be done by statute if Congress radically restructured the Supreme Court into a larger body that sits in panels.
That’d be John Pickering, removed in 1804 - actually the first successful federal impeachment ever.
In general federal judges can be moved to what I will call emeritus mode in which they get their full salaries and are available on call, but essentially removed from active duty. I think that Biden is suggesting to do that for any supreme who passes, say 75. Is this constitutional? As stated the constitutional provision is sufficiently vague that someone would sue and the final decision would be made by … the Supreme Court. I cannot imagine them deciding to pension themselves off. So I do think it would require an amendment.
But can judges be involuntarily placed in emeritus mode?
Senior status. As you note, a federal judge who takes senior status continues to receive their salary but takes on a reduced caseload and can be assigned to temporarily help fill in where needed. Taking senior status removes them from their bench and creates a vacancy. Supreme Court justices have been eligible to take senior status since 1937 and several have, but it is entirely voluntary on the judge.
Why not do it with the corporate technique - require any new SCOTUS justice to sign a resignation letter effective their 75th birthday. Of course, that leaves existing judges exempt, and any future president and senate could conspire to skip this step. That would leave one party in “Al Franken” mode, showing the right way only to have the other side thumb their noses.
Plus, is a resignation letter irrevocable?
Certainly as time goes on and more people last well past their 75th, 85, and even 95th birthdays (like QEII and Henry Kissinger) it falls to the system to figure out how to give the older folks the nudge. This was not a problem in the Godde Olde Days of 1788 when most men dropped dead from assorted medical causes (today preventable) well before 75.
Right, the issue there is that a President could only accept the resignation letters from Justices of the other party, but at least it would be something. Bad Justices could be removed by their opponents winning a single election.
Because that would not be constitutional.
It’s helpful to consider the origins of that phrase. It’s from the English Act of Settlement, 1701. One of the criticisms of the Stuart monarchs was that they treated the judges as their own personal officers, essentially part of the executive.
As part of the Whig political programme after the Glorious Revolution, the Act of Settlement not only established that the throne would go to the Protestant Hanoverians, it also put limitations in the Crown.
One of those limitations was a guarantee of security of tenure for the judges, so they could make their decisions based on the law, not on the instructions from the King:
Judges Commissions be made Quam diu se bene Gesserint and their Salaries ascertained and established but upon the Address of both Houses of Parliament it may be lawfull to remove them.
The Latin phrase means « during good behaviour », and provide security of salary and tenure, removable only by the two Houses of Parliament. It was picked up by the drafters of the US Constitution (and later, by Frank Herbert).
That’s a strong indication, as a matter of textual history, that the phrase means that they cannot be removed from office by the President (just like the King can’t remove British judges), but solely by the impeachment process set out in the US Constitution.
(My bolding) Isn’t the key point here that it’s the judge’s decision to take senior status, not the president’s decision ?
Leaving it to the judge to decide is consistent with judicial independence and tenure during good behaviour.
Having the president decide to move a judge off the bench strikes me as inconsistent with the guarantee of tenure.
Just by way of comparison, here’s the relevant provision of the Supreme Court Act in Canada:
(Subsection (1) is modelled on the provision of the Act of Settlement.)
No, but the other judges can make life difficult for a judge by sidelining him or her in the assignment of opinions, or by postponing cases in which his or her vote might make a difference. This can drive the reluctant judge into retirement after all. The example for this is William O. Douglas.
Rather than age, some of us here have mentioned having 9 justices with terms of 18 years set up so that in each Presidential term there are two appointments. I would also add a law that Supreme Court appointments must be voted on within 60 days.
How? It’s not like the judge is entitled to their promotion, it’s the whim of the president. If the president makes an offer contingent on the resignation letter, or the senate refuses to confirm a justice who declines this condition, why is it unconstitutional? It is their perogative to decide who and why they choose to nominate or confirm.
I agree, for current justices, this could not apply since there is no coercive power over them…
Even better, for each congressional 2-year span, 1 justice. Thus, a different senate each nomination.
The Constitution doesn’t specify a size for the Supreme Court or much about how it’s structured. By tradition it’s been a small body that hears everything en banc; Congress expand the size of the Court, but have it sit in smaller panels to hear cases. In theory Congress could radically restructure the Court by making every Federal appellate judge (of which there are over 100) an associate SCOTUS justice and have the Court sit in a panels consisting of a randomly chosen judge from each circuit on a rotating basis.
9 justices - 18 years staggered means one every session naturally.
Sure you can make that a requirement in order to be confirmed but it’s not binding. If 20-years down the road you confront the justice with the letter, they are within their constitutional rights to say “So? That’s just a piece of paper.” and refuse to step down.