Why Do Supreme Court Justices Serve for Life?
Our Founding Fathers had a very good reason for it, but in today’s world, even more is at stake.
The decision to replace Ruth Bader Ginsburg as Associate Justice of the United States Supreme Court is expected to have ramifications for generations to come. This is not only because Justice Ginsburg was, in the words of U.S. Senator Richard Blumenthal, “a towering example of this country’s ideals and promise,” but also because like all Supreme Court justices, Ginsburg was appointed for life. Presumably, Justice Ginsburg’s successor will likewise be appointed for life. Don’t miss these 9 powerful Ruth Bader Ginsburg quotes that will define her legacy.
Lifetime appointment flows from the Constitution
The idea of lifetime appointment comes from Article III of the U.S. Constitution, explains Burt Neuborne, Norman Dorsen Professor of Civil Liberties and founding Legal Director of NYU Law School’s Brennan Center for Justice. Article III established the judicial branch of the U.S. government by vesting the judicial power of the United States in “one supreme Court” and any lower courts Congress decides to establish over the course of time. In other words, the U.S. Supreme Court is the highest court and ultimate authority for deciding all controversies arising under U.S. law, including controversies regarding the constitutional validity of existing laws, both state and federal. Although Article III leaves it to Congress to decide how to organize and staff its courts, it does specify that its judges “shall hold their office during good behavior.”
The meaning of “good behavior”
The meaning of “good behavior” has long been debated. Some suggest it refers to the opposite of “high crimes and misdemeanors” (behavior that can give rise to the impeachment of a federal officeholder). “All federal judges, including Supreme Court justices, can be removed through impeachment,” explains Nora V. Demleitner, Roy L. Steinheimer Jr. Professor of Law at Washington and Lee University, “and the standard is set forth in Article III as good behavior.”
Only one Supreme Court justice has ever been impeached. In 1804, Samuel Chase, who had been appointed by President George Washington, was impeached by the House of Representatives for his allegedly partisan rulings. However, the Senate failed to convict him, and Chase served until his death in 1811. When it comes to the executive branch, here are 13 things people get wrong about impeachment.
Other Supreme Court justices have been targeted for impeachment, albeit unsuccessfully. That includes Chief Justice Earl Warren, who was appointed in 1953 under Republican President Dwight D. Eisenhower. Warren came to disappoint the Republican party with decisions such as 1954’s Brown v. Board of Education of Topeka (putting an end to segregation in schools), but the resulting “Impeach Earl Warren” movement failed to gain steam.
What “good behavior” cannot mean is “right” versus “wrong” decisions, Neuborne points out. Why? This “would defeat the reason for having lifetime tenure,” which is the goal of shielding federal judges from outside pressure.
The reasoning behind lifetime appointment
The pressure Neuborne is referring to includes political pressure and popular opinion. “The framers believed it important to separate the legislative, executive, and judicial powers of government, and they believed it was particularly important to create a judiciary that would be independent of popular opinion,” according to Ryan Vacca, Professor of Law at the University of New Hampshire School of Law. “If they had to be reappointed or reelected,” suggests Michael R. Dimino Sr., Professor of Law at Widener University Commonwealth Law School, “they would have to worry that unpopular decisions could cost them their jobs.”
The actual length of a lifetime appointment
“A lifetime appointment does not require that a justice serve till death,” points out Demleitner. “A host of Supreme Court justices chose to retire over the years.” Chief Justice Warren retired voluntarily in 1969. Recent retirements include Sandra Day O’Connor, John Paul Stevens, and David Souter. Other countries impose term limits and/or mandatory retirement ages. Although constitutionally these options are not available in the United States, Demleitner argues that longer life expectancy (compared with the late 18th century) may lead to an increase in voluntary retirements in the future.
What’s at stake because of lifetime appointment
In addition to life expectancies increasing since the drafting of the Constitution, the age at which judges are appointed to the Supreme Court has been decreasing in recent years, with John Roberts and Elena Kagan appointed at 50, Clarence Thomas at 43, Stephen Breyer, Sonia Sotomayor, and Samuel Alito at 55, Neil Gorsuch at 49, and Brett Kavanaugh at 53. As a result, someone appointed to the Supreme Court today might reasonably be expected to still be sitting on the bench in two, three, or even four decades. If Supreme Court nominations have become increasingly acrimonious in recent years, which Demleitner suggests, the potential length of lifetime tenure may be a factor.
The appointment imperative
The president is vested with the power to nominate Supreme Court justices, subject to the advice and consent of the U.S. Senate. However, Article III says nothing about the number of justices that must be active at any given time, points out Neuborne.
The first Judiciary Act, passed in 1789, provided that the Supreme Court was to consist of six justices: a “chief justice” and five “associate justices.” Historically, the number of active Supreme Court justices has run the gamut, with Congress having amended the number six times. “We started with six, went down to five in 1801, back to six in 1802, and then added more justices as the country expanded,” Neuborne says. “During the Civil War, we went briefly to 10, but quickly back to 9, where it has remained.” Here is more on why the Supreme Court currently has nine justices.
Since the number of justices is dictated by an act of Congress, it’s entirely possible that regardless of who is appointed to fill Ginsburg’s chair, Congress could add another seat or two, Neuborne adds, although he isn’t sure the Court as a truly independent institution would survive such an approach. However, one thing is clear: Even with eight justices, the Supreme Court is fully capable of hearing and deciding cases. The Judiciary Act of 1789 provided that any four Supreme Court judges would constitute a quorum (the minimum number who must be present to make a decision valid), and later legislation upped that number to six. Therefore, even with the vacancy left by Justice Ginsburg, the Supreme Court still has the necessary quorum to decide cases, plus two to spare. Next, learn another 50 facts about America most Americans don’t know.
- Burt Neuborne, Norman Dorsen Professor of Civil Liberties and founding Legal Director of NYU Law School’s Brennan Center for Justice
- Nora V. Demleitner, Roy L. Steinheimer Jr. Professor of Law at Washington and Lee University
- Ryan Vacca, Professor of Law at the University of New Hampshire School of Law
- Michael R. Dimino Sr., Professor of Law at Widener University Commonwealth Law School
- Supreme Court of the United States: “About the Supreme Court”
- Constitution Annotated: “ArtIII.S188.8.131.52 Good Behavior Clause: Doctrine and Practice”
- OurDocuments.gov: “Transcript of Federal Judiciary Act (1789)”