At The Atlantic, Lawrence Goldstone argues in favor of Democrats packing the Supreme Court. Goldstone contends correctly that Congress can set the number of justices to whatever it wishes. But then he tries to pull a fast one by asserting that Congress can limit the terms of Supreme Court appointees without first ratifying a constitutional amendment:

Article III similarly failed to specify how long a Supreme Court justice would serve, stating only that judges “shall hold their offices during good Behaviour.” This has widely been interpreted as serving for life, but with fear of judicial despotism so widespread, “during good Behaviour” could well have meant that justices could serve as long as they discharged their duties professionally and stayed out of politics. (Samuel Chase, the sole Supreme Court justice ever impeached, was brought to trial in part in 1804 for exhibiting open partisanship from the bench.) That is not at all the same as defining how long they are allowed to remain on the bench.

“Good Behaviour” presents a particular problem for textualists, who, as the former Justice Antonin Scalia said at Catholic University in 1996, “don’t care about the intent … don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words.” They “take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” If the Framers intended justices to have life terms, it would have been a simple matter to draft the sentence to make that intention clear. As it stands, one can only assume that good behavior and life are synonymous, and assumption is anathema to textualist philosophy.

This is incorrect. It is not an “assumption” that “good behavior and life are synonymous”; it is a fact. As Goldstone records, Justice Scalia believed that readers of the Constitution must “take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” Indeed so. And the “fairly understood meaning” of “good Behavior” was clear at the time in both America and Britain, as it had been since before the Glorious Revolution: It meant “for life, unless removed.”

The advantages of this system are most clearly outlined by Alexander Hamilton in Federalist 78:

You Might Like

The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

. . .

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

Why did Hamilton cast “good Behavior” as meaning “permanent tenure”? Because, absent a temporal clarification, that’s what it meant when he was writing. As Saikrishna Prakash and Steven D. Smith have noted, contemporary authorities were entirely capable of creating roles that were contingent upon “good behavior” but not awarded for life, and, when they did so, they were entirely capable of explicitly clarifying the limitation — by, for example, awarding a role that lasted for “five years, during good behavior.”

It is true that what constitutes “bad Behavior” is somewhat subjective, and that the details varied both in England and in the early republic. But there is simply no definition from that period that implies that Congress can remove or limit sitting judges according to its quotidian preferences — let alone to set a mandatory timeframe after which all judges are deemed to be in violation of the rules. As Akhil Reed Amar notes in America’s Constitution, the Founders deliberately withheld from Congress the power to remove judges by “address,” as many of the colonies had, and as was common in England, and instead chose to grant it the power “to adjudicate a judge’s alleged misbehavior while sitting in a judicialized impeachment process.”

Perhaps the most famous definition of “bad Behavior” was developed by Sir Edward Coke, who proposed that it meant either refusing to do one’s job or abusing one’s office. Goldstone’s argument turns this on its head, calling as it does for the dismissal of judges based upon the opposite sin: The desire to keep working honestly into old age.