When considering the framework of the Constitution, it is often a useful exercise to consider how we might approach a particular article or amendment if, hypothetically, we were writing it today. In most cases, it is doubtful that we would use the same language to define the scope of a given clause. In some cases, it is doubtful that certain elements would exist at all.
Occasionally, the Constitution uses language that might be considered rather unusual—even colorful—by today’s standards.
Take Article III, concerning the Judicial Branch, which says, “Federal judges shall hold their office in good behavior…” This provision, which appears somewhat subjective, is taken to mean that barring voluntary retirement or impeachment on the grounds of wrongdoing, federal judges may continue to serve unchallenged as long as they are still breathing.
From modern perspective, this seems to conflict with the concept of limited and balanced powers, but in 1787, the Constitution’s authors had a sound reason for this. Indeed, one of the grievances outlined in the Declaration of Independence concerned the removal and replacement of judges to suit the legal will of the King of England:
“[The king] has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
Consider, however, that in 1787 the average life expectancy of an American citizen was right around 36 years of age—roughly half the current estimate. Therefore, granting a life tenure to a judge rarely constituted anything beyond a single decade on the bench. Moreover, it was considered by those who had just escaped the shackles of monarchy to be a small price to pay in limiting the executive’s ability to flip judges at will.
In 2016, however, with average life expectancy approaching 80 years, it has become a reality that on the rare occasion of a Supreme Court vacancy, an important selection criteria be that the age of any nominee be low enough to ensure that they can occupy the bench for several decades.
With such a lack of transition in the judiciary, is it truly possible to remain “a nation of laws,” more so than a nation of men, and their specific politics and personalities?
One argument is that judges who serve for several decades become immune to the back-and-forth (left-right) shifts in the political landscape, thus preserving the integrity of the judicial function.
But isn’t the opposite also true? That an unchanging set of legal interpretations based on individual ideologies prevents the will of the people, through their elected representatives, from bringing about change in the legal landscape of a nation that is supposed to be governed by their consent?
The question of term limitations for federal judges might bear some consideration as the nature of the American legal landscape, which now must consider complicated questions that are evolving at a pace unimaginable in 1787, continues to change.
What Do You Think?