SCOTUS Term Limits May Be a Good Idea. But They Still Require a Constitutional Amendment.

Lifetime tenure for federal judges has been the constitutional practice since ratification.

Of the various ideas that have been proposed over the years to "reform" the U.S. Supreme Court, the call for imposing term limits on the justices has generally enjoyed the broadest bipartisan support.

At the same time, however, it would be among the most difficult of changes to bring about, as any such alteration to the federal judiciary would require a new constitutional amendment in order to go into effect.

Or would it? A recent New York Times op-ed made the case for SCOTUS term limits and confidently asserted that they "can be imposed through federal law," no pesky constitutional amendment required.

Is that correct?

According to Article III, Section 1, of the Constitution, "the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." That language has long been understood to mean a lifetime appointment from which a federal judge may only be booted via the formal impeachment and removal process. Generally speaking, federal judges get to keep their jobs until they retire or die.

Perhaps the leading authority for this understanding of the constitutional text is Federalist No. 78, which was written during the ratification debates in 1788 by Alexander Hamilton to explain the purposes and powers of the judicial branch. "The permanent tenure of judicial offices," he explained, was placed in the Constitution in order to bolster "that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty." Having a job for life, Hamilton argued, would insulate federal judges from "the encroachments and oppressions" of the other branches. By contrast, Hamilton wrote, "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."

When you contrast the phrase "permanent tenure" with the phrase "temporary commission," it is easy enough to understand why lifetime judicial tenure has been the constitutional practice since the document was ratified.

Additional support for this original understanding of the Good Behaviour Clause may be found in the fact that a constitutional amendment requiring term limits for federal judges was introduced in Congress in 1807. In other words, less than two decades out from ratification, federal lawmakers thought that they could only limit a federal judge's days in office via the amendment process (or via impeachment). Why would such lawmakers bother to propose an amendment if they thought they could do it by legislation alone?

Judicial term limits may be a good idea. I'm not opposed to them and can imagine some upsides that might follow from the change.

But the notion that such a big transformation of Article III may be accomplished without the passage and ratification of a new amendment does not pass the constitutional smell test.

---

The 'Polls' Are Still Open

I recently encouraged readers to weigh in with their thoughts on what cases should be included on a list of the worst Supreme Court decisions of all time. I have already received a number of thoughtful and interesting responses. Thank you to everyone who took the time out of their busy days to write to me.

There's still room for more entries. So if you harbor a burning desire to denounce one or more SCOTUS decisions, now is your time to let the denunciations fly. If I receive enough responses, I'll discuss them in a future newsletter.