The Good Behavior Clause

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

—Judge David R. Stras & Ryan Scott

Introduction

The Good Behavior Clause of Article III safeguards judicial independence by protecting federal judges against removal from office at the whim of the executive and legislative branches. Federal judges do not enjoy “life tenure.” Rather, “good behavior” serves as a legal term of art that grants an office for life, at least in the absence of misbehavior. Federal judges can be removed following impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors” but, under longstanding practice, not for their judicial acts. Congress may have the power to remove judges by eliminating the federal courts on which they sit. Some scholars also argue that Congress could create mechanisms other than impeachment to remove federal judges. Debates continue about whether term limits can be imposed on federal judges by statute.

History Before 1787

In eighteenth-century England, tenure “during good behaviour” emerged to shield judges from removal at the pleasure of the king. The 1701 Act of Settlement required that judges hold their offices quam diu se bene gesserint (for as long as they conduct themselves well).¹ Further legislation in 1761 ensured that judges would continue in office notwithstanding the death of the monarch.² Sir William Blackstone wrote that those tenure protections safeguarded judicial independence: “In this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty.”³

In the American colonies, judges enjoyed no such protection. They could be removed from office by the king for any reason—a powerful incentive to favor the Crown’s interests. In the Declaration of Independence, the Second Continental Congress cited the lack of tenure protections for judges as one of the “repeated injuries and usurpations” inflicted by the king: “He has made Judges dependent on his Will alone, for the tenure of their offices. . . .”⁴

After independence, early state constitutions overwhelmingly provided that judges should continue in office “during good behavior.” John Adams wrote in Thoughts on Government that judges “should hold estates for life in their offices; or, in other words, their commissions should be during good behavior.”5 A few state constitutions, such as those of Virginia and North Carolina, included that language without elaboration.⁵ The New York constitution provided for service “during good behavior or until they have respectively attained the age of sixty years.”⁶ Other state constitutions explicitly addressed mechanisms for removal. Several states followed the English model. Delaware, Massachusetts, Maryland, South Carolina, and Vermont granted judges tenure “during good behavior” but authorized removal upon the address of the legislature.⁷ Some state constitutions, like Maryland’s, provided that “judges shall be removed for misbehaviour, on conviction in a court of law.”⁸ In each of these formulations, the main protection for judges in the newly independent states was tenure during good behavior.

The Constitutional Convention

The Constitutional Convention adopted the Good Behavior Clause without controversy. Both the Virginia and New Jersey Plans called for judges “to hold their offices during good behaviour,” and that language was approved without discussion.⁹

On August 27, John Dickinson of Delaware proposed an amendment to allow the removal of judges “by the Executive on the application by the Senate and House of Representatives.”¹⁰ Gouverneur Morris of Pennsylvania opposed the amendment, arguing that it would be “a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be removeable without a trial.”¹¹ Roger Sherman of Connecticut observed that there was a similar provision in Great Britain.¹² Edmund Randolph of Virginia countered that this motion would “weaken[] too much the independence of the Judges.” Dickinson’s amendment was rejected by a vote of 7 to 1.

On September 8, the impeachment process was extended to the President as well as to “The Vice President and other civil Officers of the United States.”14 (See Essay No. 20.) The Appointments Clause provides that judges of the U.S. Supreme Court and other judges appointed by the President are “Officers of the United States” and therefore subject to impeachment. Although Article III does not explicitly refer to the impeachment process, the Impeachment Clause is the only method described in the Constitution for the removal of “Officers of the United States.” As a result, judges could be impeached only for “Treason, Bribery, or other high Crimes and Misdemeanors” and, as Morris stated, be removed only after a trial and conviction by two-thirds of the Senate.

The Ratification Debates

In Federalist No. 78, Alexander Hamilton explained that the “good behaviour” standard for “continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government.” He observed that “[i]n a republic,” this standard is an “excellent barrier to the encroachments and oppressions of the representative body” and “the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”¹³

Although Article III does not grant judges “life tenure,” the “good behaviour” clause was widely understood to confer tenure for life in the absence of impeachment and removal. Hamilton acknowledged that if federal judges “behave[d] properly,” they would “be secured in their places for life.”¹⁴ Even opponents of the Constitution understood that the Constitution would grant a form of life tenure, warning that “[t]he same judge may frequently be in office thirty or forty years.”¹⁵ Hamilton further described impeachment as “the only provision on the point” for removing federal judges, one “which is consistent with the necessary independence of the judicial character.”¹⁶

During the ratification debates, many Anti-Federalists argued that Congress should have greater power over the judiciary. Brutus, for example, warned that under the Constitution, the legislature would lack any power to reverse judicial decisions or remove judges for incapacity or “error[s] in judgement” and that this would make judges independent of “every power under heaven.”¹⁷ Hamilton responded that any means of removal outside of the impeachment process would “be liable to abuse.”¹⁸

Impeachment of Judges

Fifteen federal judges have been impeached by the House of Representatives and tried in the Senate. Eight were convicted and removed from office, three resigned before judgment by the Senate, and four were acquitted.¹⁹ Not all impeachments have involved allegations of criminal misconduct. Judge John Pickering, for example, was impeached, convicted, and removed from office in 1803 for intoxication on the bench and mental instability. But most judges removed through impeachment were accused of criminal misconduct following either a criminal conviction or an acquittal.²⁰

Samuel Chase was the only Supreme Court justice to be impeached. He was charged with being biased during two criminal cases, delivering a “political harangue” to a grand jury, and issuing a bench warrant instead of a summons.²¹ Justice Chase’s defense team argued that removal from office was inappropriate for “petty errors and indiscretions too insignificant to have a name in the penal code.” The lawyers asked whether the Senate should “fix a standard of politeness in a judge, and mark the precincts of judicial decorum[.]”²²

Although Republicans controlled twenty-five Senate seats—more than enough to convict—Justice Chase was acquitted of all charges.²³ A frustrated President Thomas Jefferson declared that “[t]his business of removing Judges by impeachment is a bungling way.”²⁴ Two centuries later, however, Chief Justice William Rehnquist described Justice Chase’s acquittal as establishing the “political precedent” that “a judge’s judicial acts may not serve as a basis for impeachment.”²⁵

Removing Judges Outside of Impeachment

Outside of impeachment, two other methods of removing federal judges from office may be available. Both are controversial.

First, might Congress remove federal judges from office by dissolving their courts entirely? The “Midnight Judges” Act of 1801 created sixteen new federal circuit court judgeships.28 In 1802, the Republican Congress repealed the Judiciary Act of 1801, effectively removing the judges from those courts. Repeal was premised on Congress’s power “to constitute” and “from time to time to ordain and establish” inferior federal courts. In Stuart v. Laird (1803), the Supreme Court appeared to accept the constitutionality of the repeal.²⁶ The decision held that Congress was free to transfer actions from one federal court to another, but it did not expressly address either the “good behaviour” clause or the separation of powers. Tellingly, it has been 150 years since Congress has tried to remove federal judges by eliminating a court.²⁷

Second, might the judiciary itself remove judges upon a finding of misbehavior? Both before and after the Settlement Act of 1701, those holding office “during good behaviour” were subject to judicial proceedings to determine whether they had misbehaved. The common-law writ of scire facias allowed a plaintiff (typically the king) to seek an officeholder’s removal for misbehavior. Professor Raoul Berger acknowledged that “this procedure found employment with respect to lesser officials” and that “there is no English case wherein a judge comparable to a federal judge was removed in a judicial proceeding.”²⁸ Nevertheless, based on that historical practice, some scholars have suggested that Congress could constitutionally authorize the President, legislators, or others to strip judges of their office by suing them in federal court for misbehavior.²⁹

Some scholars have suggested that term limits, age limits, and other limitations on life tenure can be imposed by statute without a constitutional amendment.³⁰ Others have disagreed, citing doubts about the historical evidence and maintaining that impeachment was understood to be the exclusive method for the removal of judges.³¹

The judiciary itself has done little to explore whether it can remove judges. The most high-profile test of that power involved Stephen Chandler, Chief Judge of the U.S. District Court for the Western District of Oklahoma. Chandler had been sued for malicious prosecution, criminally charged with conspiracy by the State of Oklahoma, and twice forced to recuse himself from cases by the U.S. Court of Appeals for the Tenth Circuit.³² In 1965, the Judicial Council of the Tenth Circuit voted to bar Chandler from taking action in any cases. The Judicial Council found that Chandler was “presently unable, or unwilling, to discharge efficiently the duties of his office.”³³

Chandler asked the Supreme Court to find that the Judicial Council had usurped Congress’s power to impeach and remove judges. The Court, in an opinion by Chief Justice Warren Burger, dismissed the suit because the order had been rescinded shortly after it was entered.³⁴ But three Justices would have reached the merits. Justice John Marshall Harlan II, concurring, opined that Congress had empowered judicial councils to exercise supervisory or disciplinary authority over district courts, including the power to prevent judges from hearing cases.³⁵ Justices William Douglas and Hugo Black dissented. In their view, “there is no power under our Constitution for one group of federal judges to censor or discipline any federal judge and no power to declare him inefficient and strip him of his power to act as a judge.”³⁶

The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, enacted ten years after the Chandler case, authorized judicial councils to suspend case assignments from judges who are mentally or physically unable to discharge their duties or who have engaged in inappropriate conduct.³⁷ However, the law also specifies that “[u]nder no circumstances may [it] order removal from office of any judge appointed to hold office during good behavior.”³⁸

Court Reform Proposals

Throughout the nation’s history, there have been repeated efforts to eliminate life tenure, and they tend to coincide with periods of political dissatisfaction with the Court’s decisions. From 1807 to 1912, members of Congress introduced numerous proposals to amend the Constitution and impose term limits, age limits, or popular elections for federal judges.³⁹ President Franklin D. Roosevelt’s failed “court packing” plan in 1937 was accompanied by a flurry of proposals to end life tenure by constitutional amendment.⁴⁰ At the height of the Warren Court, there were more than thirty proposals from Congress to end life tenure.⁴¹

In 2021, President Joe Biden established the Presidential Commission on the Supreme Court of the United States to investigate various proposals for reform. The final report declined to take “a position on the merits of term limits.”⁴²

Open Questions

• Can Congress impose term limits by statute in the absence of a constitutional amendment?⁴³
• Could Congress assign “senior” members of the Supreme Court to hear only certain cases—for example, when an “active” Justice is recused?⁴⁴
• Can the federal courts refuse to assign cases to a judge unless he or she consents to a medical examination?⁴⁵

1. Act of Settlement 1701, 12 & 13 Will. 3 c. 2. ↩︎
2. 1 Geo. 3, c. 23 (1761) (Ruffhead, 8 Statutes at Large 574 (1763)). ↩︎
3. 1 Blackstone 259. ↩︎
4. Declaration of Independence, ¶¶ 2, 11. ↩︎
5. Va. Const. of 1776, in 2 The Federal and State Colonial Charters, and Other Organic Laws of the United States 1911 (Benjamin Perley Poore ed., 1877); N.C. Const. of 1776, art. XIII. ↩︎
6. N.Y. Const. of 1777, art. XXIV. ↩︎
7. Del. Const. of 1776, art. XXIII; Mass. Const. of 1780, ch. III, art. 1; Md. Const. of 1776, art. XXX; S.C. Const. of 1776, art. XX; Vt. Const. of 1777, ch. II, § XXVII. ↩︎
8. Md. Const. of 1776, art. XXX. ↩︎
9. 1 Farrand’s 21, 126, 244. ↩︎
10. 2 Farrand’s 428. ↩︎
11. Id. ↩︎
12. Id. at 429. ↩︎
13. Federalist No. 78 (Hamilton). ↩︎
14. Federalist No. 79 (Hamilton). ↩︎
15. Storing 2.8.188; Benjamin Gale, On a Town’s Choice of Delegates (Nov. 12, 1787), reprinted in 3 DHRC 428. ↩︎
16. Federalist No. 79. ↩︎
17. Storing 2.1.191–92. ↩︎
18. Federalist No. 79. ↩︎
19. About Impeachment: Senate Trials, U.S. Senate, https://perma.cc/DQ8N-NGFY. ↩︎
20. Michael J. Gerhardt, The Lessons of Impeachment History, 67 Geo. Wash. L. Rev. 603, 614, 619 n.81 (1998). ↩︎
21. 14 Annals of Cong. 85–88 (1804). ↩︎
22. R.W. Carrington, The Impeachment Trial of Samuel Chase, 9 Va. L. Rev. 485, 494 (1923). ↩︎
23. Jerry W. Knudson, The Jeffersonian Assault on the Federalist Judiciary, 1802–1805; Political Forces and Press Reaction, 14 Am. J. Legal Hist. 55, 67 (1970). ↩︎
24. Letter from John Langdon to Thomas Jefferson (Feb. 13, 1804), explanatory note, https://perma.cc/8WFQ-AGA6. ↩︎
25. Hon. William H. Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 589 (2004) (emphasis omitted). ↩︎
26. U.S. (1 Cranch) 299 (1803). ↩︎
27. Charles Gardner Geyh, Judicial Independence at Twilight, 71 Case W. Rsrv. L. Rev. 1045, 1067–68 (2021). ↩︎
28. Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 Yale L.J. 1475, 1479–80 (1970). ↩︎
29. Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 128–33 (2006); Berger, supra at 1526–28; Burke Shartel, Federal Judges—Appointment, Supervision, and Removal—Some Possibilities Under the Constitution, 28 Mich. L. Rev. 870, 891–98, 894 n.70 (1930). ↩︎
30. David R. Dow & Sanat Mehta, Does Eliminating Life Tenure for Article III Judges Require a Constitutional Amendment? 16 Duke. J. Const. L. & Pub. Pol’y 89, 107–09 (2021); Paul D. Carrington & Roger C. Cramton, The Supreme Court Renewal Act: A Return to Basic Principles, in Reforming the Court: Term Limits for the Supreme Court Justices 471 (Roger C. Cramton & Paul D. Carrington eds., 2006). ↩︎
31. James E. Pfander, Removing Federal Judges, 74 U. Chi. L. Rev. 1227, 1227–30 (2007); David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for a “Golden Parachute,” 83 Wash. U. L.Q. 1397, 1402–38 (2005); Martin H. Redish, Judicial Discipline, Judicial Independence, and the Constitution: A Textual and Structural Analysis, 72 S. Cal. L. Rev. 673, 699 (1999); Irving R. Kaufman, Chilling Judicial Independence, 88 Yale L.J. 681, 691–703 (1979). ↩︎
32. Chandler v. Jud. Council of Tenth Cir. of U.S., 398 U.S. 74, 77 & n.4 (1970); Occidental Petroleum Co. v. Chandler, 305 F.2d 55 (10th Cir. 1962) (en banc); Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir. 1965) (en banc). ↩︎
33. Chandler, 398 U.S. at 77. ↩︎
34. Id. at 88–89. ↩︎
35. Id. at 104–06 (Harlan, J., concurring). ↩︎
36. Id. at 137 (Douglas, J., dissenting). ↩︎
37. Pub. L. No. 96-458, § 3, 94 Stat. 2035 (1980); 28 U.S.C. §§ 351(a), 354(a)(2)(A). ↩︎
38. 28 U.S.C. § 354(a)(3)(a). ↩︎
39. Michael J. Mazza, A New Look at an Old Debate: Life Tenure and the Article III Judge, 39 Gonzaga L. Rev. 131, 143-46 (2003). ↩︎
40. Id. at 149–50. ↩︎
41. Id. at 152–53. ↩︎
42. Presidential Commission on the Supreme Court of the United States Final Report 8 (2021), https://perma.cc/U55S-NNEC. ↩︎
43. Alicia Bannon & Michael Milov-Cordoba, Supreme Court Term Limits, Brennan Center for Justice (June 20, 2023), https://perma.cc/5XWY-CWXZ. ↩︎
44. The Case for Supreme Court Term Limits, U.S. Supreme Court Working Group (Oct. 25, 2023), https://perma.cc/7786-Q98R; Jack Balkin, Don’t Pack the Court. Regularize Appointments, Balkinization Blog (Oct. 5, 2020), https://perma.cc/37YA-N26E. ↩︎
45. Newman v. Moore, 743 F. Supp. 3d 62 (D.D.C. 2024). ↩︎