CRF Blog

Should Federal Judges Have Lifetime Terms?

by Bill Hayes

Article. III, section 1, of the U.S. Constitution states that

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour….

This means that federal judges, unless they misbehave and are impeached (a rare occurrence) are given life appointments to the bench.

Writing in Federalist #78, Alexander Hamilton argued that these appointments are necessary to ensure judicial independence:

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 which 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.

Hamilton also made the argument that without these appointments, the judiciary would not attract the best talent.

Writing in his blog for the Atlantic, James Fallows argues for a fixed 15-year term for all Supreme Court justices. Here is part of his argument:

[F]rom the founding of the Republic until 1970, the average tenure of a Justice was under 15 years; since then, it’s over 26 years. As a result, actuarial considerations have become fundamental to the modern nominating process …. It is a “wasted” appointment to choose someone over age 60, since a nominee in his or her 40s…or early 50s…can likely cast that many more votes over the years. The idea that we’re locking in policy for the next three or four decades makes the confirmation process all the more embittered and partisan — and dishonest, as nominees…pretend they have no settled views. Older and ailing Justices may hold onto their seats unnaturally long, too, if the “wrong” party controls the White House.

Law professors Neil M. Richards and Craig M. Bradley take opposing positions in Should Supreme Court Justices continue to have life tenure? Their arguments are concise and suitable for a classroom discussion.