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Does SCOTUS Really Have Lifetime Appointments and What to Do About It [1]

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Date: 2024-06-21  

As have many, I have watched in horror as a uniquely corrupt and partisan supreme court has unwound established rights, defied precedent and slanted the rules for their favored group: rich, white male "conservatives". The litany of abuses, seemingly radiating from the seminal Bush v Gore travesty to encompass voting rights, corporate personhood, money = speech, Dobbs, and good, old fashioned personal graft and corruption far exceeds any reasonable short catalog. Suffice it to say we are living in an era of unaccountable judicial autocracy in the name of something weirdly labeled "originalism". There seems to be little that anyone can do to remedy this–Supreme Court judges hold lifetime appointments--don't they?

Ultimately, it seems to make the most sense to expand the court: provide for each president to periodically appoint a fresh judge each year or every other year. I have heard any number of arrangements suggested for this including 13 or 15 judges (and at least once, 25) sitting for15 or 18 year terms. I think my personal preference is a 16 seat court with 16 year staggered terms. Thus one new justice would be named every year and a 2 term president would replace ½ of the court.

Short of that--or perhaps in addition to it--I offer the following observations: If one takes the unusual step of actually reading the US Constitution (looking into its ORIGINAL TEXT, one might say), one discovers that the Constitution does not explicitly grant nor refer to life tenure for judges, including SCOTUS. Specifically, Article 3. Section 1 states: "The Judges ... shall hold their Offices during good Behavior",* That is all it says about judicial terms.

I am not entirely sure where the notion of “lifetime appointments” arose, although we certainly seem to be living with it. The Constitution does not enumerate specific terms such as four years for president, six for Sensors, etc., but it just as certainly does not say anything about life tenure.

At least in theory, it should be possible for some future Congress to enact legislation that more fully defines just what constitutes "good behavior" (and perhaps at least as important, what doesn't), the penalties for violating it (e.g. suspension or expulsion) and the procedures for enforcing these provisions.

I understand that impeachment has been the historical vehicle of choice for dealing with misbehaving judges, especially Federal. However, it is unclear that this is required by the Constitution, only chosen as perhaps a "way out" to deal with problems. Impeachment (as a remedy) is mentioned only in conjunction with Article 2: Executive (branch)(incl president).

Exactly how one makes use of this knowledge is more of an open question. One obvious choice would be for some future in which we (i.e. anyone interested in honorable SCOTUS functionality) find ourselves in the position of controlling simultaneously a presidency and both houses of Congress, Congress might pass a law defining just what good behavior is (and especially isn’t) and how one might go about determining it for a sitting SCOTUS judge and what might be done about it..

Such a move might be an effective stopgap and /or prelude to a Constitutional amendment, or other possible moves to expand the court and establish reasonable terms.

* The full text of Article 3. Section 1: 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 Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

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