On July 29, the Washington Post published an op-ed piece by President Biden. In it, Biden called for major reforms of the U. S. Supreme Court, perhaps all of which would require Constitutional Amendments. One of the proposed changes is to set a term of 18 years for Supreme Court Justices. We will explore Alexander Hamilton’s arguments in favor of lifetime appointment for judges in Federalist 78.
We have previously written about the process for appointing and confirming civil officers of the United States. This same process applies to federal judges, including Justices of the Supreme Court. In our previous article, we examined Hamilton’s defense of the general appointment process. Here, we look at the specifics of how long judges serve.
Constitutional Language: Structure of the Supreme Court
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
U. S. Constitution, Article III, Section 1
The Constitutional language here doesn’t tell us much a whole lot about the structure of the federal judiciary. A lot of it is left for Congress to fill in.
The Constitution does set some very basic parameters. There is to be one Supreme Court. The Supreme Court exercises the judicial power of the United States. Congress may create inferior courts, meaning that all other courts must be inferior to the Supreme Court. Justices are to serve “during good Behavior,” meaning life tenure. For bad behavior, Justices may be removed by impeachment (see U. S. Constitution, Article II, section 2).
Judges are to be paid for their service. Further, during their time on the bench, their compensation cannot be reduced. Similar provisions exist protecting the pay of the President and members of Congress. The intent here is to prevent Congress from influencing judicial decisions by manipulating judicial pay. Imagine a judge ruling in a way that Congress didn’t like. If Congress could cut, or even eliminate, the judge’s pay, Congress would effectively control the judge.
The Constitution doesn’t tell us how many Justices are to be on the Court. The size of the Court is set by Congress and has changed over the years. Today, there are nine Justices on the Court. Originally, there were six.
Article III, Section 2, of the Constitution tells us what types of cases the federal courts can hear. This defines the scope of the judiciary’s power. That is beyond the scope of our discussion here, though.
Federalist 78 on Term of Good Behavior
According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. . . . 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.
Alexander Hamilton, Federalist 78
Federalist 78 is the classic discussion of the need for lifetime appointments to foster an independent judiciary. Hamilton offers two main reasons for having judges serve life terms. First, the Framers saw that it was working well in the states that were using this system. Second, it helps to assure the independence of the judiciary. The necessity of an independent judiciary will occupy most of the rest of our discussion.
Judicial Experience
It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.
Alexander Hamilton, Federalist No. 78
Lifetime appointments to the Supreme Court allow highly experienced Justices to mentor more junior Justices. Limiting the length of service arguably limits the institutional and overall legal experience that can be brought to bear on issues brought before the Court. Rather than reducing Supreme Court Justice tenure, it would seem we would really want to maximize judicial experience of those on the highest court.
It is worth mentioning that Hamilton here notes the importance of precedent. One of the driving forces for advocates of changing the Court today is that precedents have been overturned. It is unlikely that Hamilton would suggest that precedent never be overturned, though there definitely is merit in a general presumptive respect for precedent. We expect lower courts to be bound by precedent of higher courts, and that may be at the core of Hamilton’s comment about precedent. The Supreme Court, however, has no higher court which can bind it.
If we had a principle of never overturning precedent, the Dred Scott case and Plessy v Fergusson would still be binding precedent in the United States. A discussion of when and how it is appropriate to overturn precedent is beyond the scope of our discussion here, but all sides should be able to agree on the general precept that a precedent which is in error may be overturned.
The Least Dangerous Branch
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Alexander Hamilton, Federalist 78
As Hamilton observes, the judiciary can do nothing on its own. It relies upon the Executive to enforce its decisions. It relies upon the legislative branch to write the laws which the courts must interpret and apply to specific situations. Unlike the legislative and executive branches, the judiciary cannot initiate any action on its own. American courts may only render decisions about cases that come before them. They are powerless to take the initiative in any policy area.
Hamilton declares that the judiciary is the “least dangerous branch” in Federalist 78. Anyone who has been on the losing side of a legal proceeding might disagree with that assessment. The inability of the judiciary to act alone does seem to support the claim, however, that the judiciary is the least dangerous branch.
Rule of Law
The judiciary is made up of fallible people, so there will be wrong decisions. The same thing can be said of the people serving in the other branches. In as much as the judiciary has power, it stems from a societal acceptance of the principle of the rule of law.
Part of adhering to the concept of the rule of law is to view court decisions through a lens of legal accuracy, as opposed to achieving preferred policies. How often when we discuss a Supreme Court decision is the focus on the legal reasoning? How often is it on which type of public policy won or lost? Too often, public discussion and media reporting focuses almost entirely, if not entirely, on policy winners and losers and not the true merits (or lack thereof) of the legal decision.
Judicial errors are, generally, correctable. If the legislature believes that a court has misapplied a law, the legislature can change the law, clarifying the intent and operation of the law. If the legislature believes the courts have misapplied the Constitution, they may be able rewrite a law to accomplish similar goals while meeting the court’s objections. Alternatively, legislatures can start the process of Constitutional amendment to overturn a decision.
Federalist 78 on Judicial Independence
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Alexander Hamilton, Federalist 78
If we walk into a court room, we expect that we will find an impartial judge presiding in the court. In as much as justice requires some element of fairness, it requires an impartial magistrate. Consider the implications for other modes of selection or tenure in office.
Independence from the Other Branches
Appointment by the President and confirmation by the Senate for judges requires that someone be acceptable to the President and a majority of the Senate. With a system of life tenure, how a judge will decide cases is not dependent on any lingering loyalty to the President who appointed the judge. Instead, the judge is independent and able to render decisions reflecting the judge’s understanding of the law. The President and the Senate have no leverage to compel the judge to rule as they wish.
Now, let’s assume we select judges in the same way, but for a renewable fixed term. Now, if the judge wishes to continue in the office, he must render decisions agreeable to the executive and legislative branches to maximize the chance of reappointment. In such a situation, the judge is not independent. The judge is dependent on the other branches. Because of that dependency, the judge is not reliably impartial.
Worst, perhaps would be direct election of judges, eligible for reelection, though this or something similar is done in many states. This makes judges dependent upon fluctuations in public opinion. Independence is here lost, as well.
Judicial Review
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Alexander Hamilton, Federalist 78 (emphasis added)
In addition to covering judicial independence and lifetime appointment, Federalist 78 provides an early explanation and defense of judicial review. Explicit authority to declare a law or other action of the legislative and executive branches unconstitutional does not appear in Article III (or anywhere else) in the Constitution. Alexander Hamilton, as we see here, clearly saw that as an inherent function of the courts. Since the Constitution sets limits on what government can do, someone must be able to say that the government has overstepped its bounds, and that is a role of the courts. The Supreme Court first asserted that role in 1803 in the case of Marbury v Madison.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
Alexander Hamilton, Federalist 78
Constitution as Binding Law
Critical here is Hamilton’s recognition of the Constitution as law. Encapsulated in this paragraph, is the central political philosophy of the Constitution. Through the Constitution, the People delegated certain powers and responsibilities to the government. That delegation of power fully defines what the government may do, what it may not do, and its core structure. The Constitution, thus, the highest law in the American system.
When the government acts, it may not exceed the authority granted to it by the People. If Congress passes a law, for instance, that exceeds Congress’ authority or violates one of the limitations on Congress, the law is invalid. It is invalid because Congress did not have the authority to enact the law.
We cannot trust the legislature to evaluate its own compliance with the Constitution. Congress is biased in judging its own actions. If Congress passes a law violating the Constitution, surely it would proclaim that it hadn’t. The same is true for executive actions. Just as courts must decide cases where statutes conflict, the courts have to settle cases when a statute conflicts with the Constitution. The difference is that the Constitution properly always takes precedence, whereas conflicts between statutes may be more difficult to sort out.
For the courts to fulfill the role of fairly measuring the actions of the other branches against the Constitution, the judiciary must be truly independent. Lifetime tenure supports that independence, as demonstrated above.
Conclusions
Federalist 78 provides an enduring explanation and defense of the structure of the Supreme Court. Lifetime tenure of Justices promotes quality, stability, and independence of the judiciary. No system is perfect. Everyone can agree that the Supreme Court has made incorrect decisions in its history. People will disagree about which decisions are wrong. We won’t engage that issue here.
Biden and Roosevelt Reform Efforts
In his July 29 op-ed , President Biden proposed a single 18-year term for Supreme Court justices. He further proposed staggering the terms of the nine Justices, so every two years the President appoints a new Justice. This proposal would guarantee a President serving two terms the opportunity to appoint at least four of the nine Justices on the court. The President would end up appointing a majority of the Justices if one or more died or retired without filling their 18-year term. Rather than creating an independent judiciary, this seems to guarantee a judiciary largely, but certainly not perfectly, following the aims and policy objectives of the President. With the current system, it is uncommon for one President to appoint that many Justices, so any one President’s influence is smaller than it would be under the Biden plan. Rather than promoting better judging, the proposal seems to promote an outsize influence of the Presidency on the judiciary.
In 1937, President Franklin Roosevelt also proposed to “reform” the Supreme Court. He proposed adding an additional Justice for each one over a specific age. While presented as a way to “help” older Justices, the clear objective was to pack the Court with judges who would vote to uphold New Deal legislation, much of which the Supreme Court struck down as unconstitutional. Roosevelt abandoned his Court-packing plan when a Justice switched from voting against the New Deal legislation to voting for it.
Structural Proposal to Depoliticize the Court
Like Roosevelt, disapproval of certain Supreme Court decisions is motivating Biden. There is no clear identification of a structural flaw in the system. Opponents of the controversial decisions focus on the policy implications of the decisions, not on a clearly articulated explanation of the decision being legally wrong.
Instead of seeking to reform a process that has worked well by further politicizing it, we must seek to depoliticize discussions around the Court. To that end, we propose a Constitutional Amendment to permanently set the number of Supreme Court Justices to nine. This will end talk, by either party, of increasing the size of the Court to respond to decisions unfavorable to the policy ends of either party.