Saturday, November 16, 2013

Where Does Our Constitution Grant "Lifetime" Tenure to Supreme Court Judges?

Few citizens today debate the current practice of appointing judges to "lifetime" tours in our nation's Supreme Court.  Yet, this practice certainly is not specified in our Constitution.  Article Three, Section 1 clearly states that they "shall hold their offices during good behavior" and that they will not have their pay reduced while in that position.
So where did "lifetime" appointments come from?

There is little doubt that our founders thought it very important to insulate these judges from political pressures and popular movements that might otherwise cause them to make decisions based on those pressures and movements.  If we were to be a nation of laws, the founders felt strongly that our judges had to be free to decide each case on its merits under those laws and in accordance with our Constitution
What would make them more independent than a long tenure without the danger of having their earnings negatively affected if someone else did not like their reasoning?  In addition, the pay protection seemed like a good thing back then - and now.

But did a long tenure have to be one that lasted a lifetime?
In general, average lifetimes were somewhat shorter one and two centuries ago.  Also, the population was much smaller which probably meant there were fewer individuals with the requisite knowledge and experience from which candidates could be identified.  Given these and other circumstances in years past, maybe the practice of lifetime appointments seemed like a natural thing to set up.

On the other hand, while we talk a great deal about the "balance of powers" between the three branches of government, is there much doubt just how much "power" there is in these judges' positions today?  The fact is that they are actually the "referee" with final decision-making authority over the "game" where our Legislature and Executive branches are the "players". So, when we see how this kind of power and influence can affect our other governmental officials, is it really a "good" thing to invest in anyone for a lifetime?

Many of us would think twelve years should be considered a long term.  Some might think a longer time while others would consider a lesser period meets that criteria.  In any case, so long as the earnings part continued while in office (and after), why would some specified time limit not meet the need for a judge's independence?

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