Constitution Annotated

Article III, Section 1 — Federal Judiciary Protections

Article III, 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 Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Essays on this page (9)

ArtIII.S1.10 Federal Judiciary Protections

ArtIII.S1.10.1 Overview of Federal Judiciary Protections

The Framers of the Constitution established the Federal Judiciary as an independent branch of government, alongside the Executive and Legislative Branches. While the Framers generally sought to structure the Constitution to ensure the separation of powers, they expressed particular concern about potential interference with the Judiciary by the political branches. James Wilson remarked at the Constitutional Convention that judges “would be in a bad situation if made to depend on every gust of faction which might prevail” in the political branches.1 Likewise, in the Federalist Papers, Alexander Hamilton famously opined that, of the three branches, the Judiciary “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.”2

Two key mechanisms that the Framers adopted to protect the Judiciary from political influence are the Good Behavior Clause and the Compensation Clause. The Good Behavior Clause provides that Supreme Court Justices and other federal judges “shall hold their Offices during good Behaviour.”3 The Supreme Court has interpreted the Clause to grant federal judges life tenure, unless they resign voluntarily or are impeached.4 The Compensation Clause provides that federal judges shall be compensated for their service, and that such compensation “shall not be diminished during their Continuance in Office.”5 Together, the two provisions prevent the political branches from seeking to influence the Judiciary by retaliating against disfavored court decisions by removing the judges responsible or docking their pay.6 The following essays briefly outline the history of the Good Behavior Clause and the Compensation Clause, then survey the Supreme Court’s decisions applying the two provisions.7

Notes
  1. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 429 (Max Farrand ed., 1911). ↩
  2. THE FEDERALIST NO. 78 (Alexander Hamilton). ↩
  3. U.S. CONST. art. III, § 1. ↩
  4. See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955) (explaining that Article III courts “are presided over by judges appointed for life, subject only to removal by impeachment”); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (plurality opinion of Brennan, J.) (“The ‘good Behaviour’ Clause guarantees that Art[icle] III judges shall enjoy life tenure, subject only to removal by impeachment.”); United States v. Hatter, 532 U.S. 557, 567 (2001) (explaining that the Good Behavior Clause grants federal judges “the practical equivalent of life tenure”). ↩
  5. U.S. CONST. art. III, § 1. ↩
  6. Other aspects of the constitutional system also seek to safeguard the independence of the judiciary. For instance, the Supreme Court has construed Article III to limit Congress’s ability to vest judicial functions in non-Article III tribunals on separation of powers grounds. See, e.g., Commodities Future Trading Comm’n v. Schor, 478 U.S. 833, 850 (1986); see also ArtIII.S1.9.1 Overview of Congressional Power to Establish Non-Article III Courts. ↩
  7. See ArtIII.S1.10.2.1 Overview of Good Behavior Clause; ArtIII.S1.10.3.1 Historical Background on Compensation Clause. ↩

ArtIII.S1.10.2 Good Behavior

ArtIII.S1.10.2.1 Overview of Good Behavior Clause

Article III, Section 1 provides that federal judges hold their offices “during good behavior.”1 This standard, borrowed from English law, ensures that federal judges hold their seats for life, rather than set terms or at the will of a superior.2 The applicability of the Good Behavior Clause to the removal of federal judges has been the subject of debate; in particular, whether the phrase elucidates a distinct standard for removal apart from the “high crimes and misdemeanors” standard applicable to the impeachment of other federal officers.3 While this question has not been definitively resolved, historical practice indicates an understanding that the Good Behavior Clause protects federal judges from removal for congressional disagreement with legal or political opinions.4

Notes
  1. The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I, Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause 6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2, Clause 3 provides that trials, “except in Cases of Impeachment, shall be by jury.” ↩
  2. See Hon. Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges the John R. Coen Lecture Series University of Colorado School of Law, 55 U. COLO. L. REV. 1, 3 (1983). ↩
  3. See generally Nixon v. United States, 506 U.S. 224, 237–38 (1993). ↩
  4. See ArtIII.S1.10.2.3 Good Behavior Clause Doctrine. Article III, Section 1, also serves the essential purpose of protecting the independence of the judiciary and protecting litigants’ rights to have claims adjudicated by an impartial judge free from the influence of another branch of government. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 849 (1986). Further, the clause bars congressional attempts to eliminate the role of constitutional courts by transferring jurisdiction to non-Article III courts, which guards against the aggrandizement of power by one branch of government over another. Id. ↩

ArtIII.S1.10.2.2 Historical Background on Good Behavior Clause

Just as the phrase “high crimes and misdemeanors” for impeachments was borrowed from English practice,1 so too was the term “good behavior” borrowed from English law concerning the duration of a judge’s tenure.2 Prior to 1701, the tenure of judges in England was established by the Crown, which often reserved the right to remove them.3 In 1701 Parliament passed legislation barring the Crown from removing judges, providing that they served “Quamdiu se bene gesserint,”4 and reserved for itself the authority to remove judges.5 The standard of good behavior and insulation from removal by the Crown was mirrored in the constitutions of many American colonies6 and was advanced by various proposals at the Constitutional Convention.7

The Framers considered the provision that federal judges maintain their seats during good behavior an “excellent barrier” against the risk of a legislature seeking to expand its power.8 Rather than serving at the pleasure of the President or Congress, the protection of judges’ seats and salary for life ensured an independent Judiciary that would not be unduly pressured by the political branches.9 Insulating federal judges from removal was crucial because the Judiciary lacks the “sword” of the Executive power and the “purse” of the Legislature.10 Rather, the judicial power consists of the reasoning and “judgements” of its officers.11 As the Federal Judiciary is in some ways the least powerful branch of the government, ensuring judges’ “permanency in office” was deemed essential to establishing an independent Judiciary.12

Further, this independence armed the Judiciary with the ability to defend and preserve a “limited constitution against legislative encroachments” against the rights of citizens.13 In the Federalist Papers, Alexander Hamilton argued that federal judges must “guard the constitution and the rights of individuals” against the possibility of laws that oppress political minorities.14 Likewise, federal judges must ensure that the law is applied justly and evenly to all citizens. If judges could be removed at will or were appointed for specified periods, judges would be tempted to consider popular opinion in their rulings to the detriment of the Constitution and the rights of political minorities.15

Notes
  1. For more on the historical background of the impeachment clauses, see The Power of Impeachment: Historical Background; The Power to Try Impeachments: Historical Background; Impeachable Offenses: Historical Background. ↩
  2. Hon. Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges the John R. Coen Lecture Series University of Colorado School of Law, 55 U. COLO. L. REV. 1, 3 (1983). (“The phrase ‘good Behaviour’ was copied by the framers of our Constitution from English law.”). ↩
  3. Note, Judicial Disability and the Good Behavior Clause, 85 YALE L.J. 706, 720 (1976). ↩
  4. The Latin phrase is sometimes translated as “so long as they conduct themselves well,” Ginsburg, supra note 2, at 3 n.10, or “during good behavior.” See Judicial Disability and the Good Behavior Clause, supra note 3, at 709. ↩
  5. ACT OF SETTLEMENT, 12 & 13 Will. 3, ch. 2, § 3 (1700). ↩
  6. See, e. g., 2 BENJAMIN P. POORE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE UNITED STATES 1910 (2d ed. 1878). ↩
  7. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787 21 (Max Farrand ed., 1966) (Virginia Plan); id. at 244 (New Jersey Plan); 3 id. at 600 (draft attributed to Charles Pinckney); id. at 621, 625 (Alexander Hamilton). ↩
  8. See THE FEDERALIST NO. 78 (Alexander Hamilton). ↩
  9. Id. ↩
  10. Id. ↩
  11. Id. ↩
  12. Id. ↩
  13. Id. ↩
  14. Id. ↩
  15. Id. ↩

ArtIII.S1.10.2.3 Good Behavior Clause Doctrine

The meaning of the Good Behavior Clause has been the subject of long-standing debate. Some have argued that the phrase denotes an alternative standard of removal for federal judges beyond “high crimes and misdemeanors” that normally may give rise to the impeachment of federal officers.1 Others have rejected this notion,2 reading the “good behavior” phrase simply to make clear that federal judges retain their office for life unless they are removed via a proper constitutional mechanism. However, while one might find some support in early twentieth-century practice for the idea that the Clause constitutes an additional ground for removal of a federal judge,3 the modern view of Congress appears to be that “good behavior” does not establish an independent standard for impeachable conduct.4 In other words, the Good Behavior Clause simply indicates that judges are not appointed to their seats for set terms and cannot be removed at will; removing a federal judge requires impeachment and conviction for a high crime or misdemeanor.

Nevertheless, even if the Good Behavior Clause does not delineate a standard for impeachment and removal for federal judges, as a practical matter, the history of impeachments in the United States might indicate that the range of conduct meriting removal differs between judges and Executive Branch officials due to the distinct nature of each office. The Senate has never voted to remove the President or an Executive Branch official, but has done so to eight federal judges.5 The conduct meriting impeachment and removal for federal judges has ranged from intoxication on the bench,6 to abandoning the office and joining the Confederacy,7 to various types of corruption. Congress has also impeached and removed federal judges for perjury and income tax evasion,8 although it is unclear whether such behavior would necessarily be considered impeachable behavior for an Executive Branch official.9

Further, leaving aside whether the Good Behavior Clause establishes a separate standard for removal independent from high crimes and misdemeanors, historical conflicts between Congress and the Judiciary may inform the outer limits of what the Good Behavior Clause entails. For instance, in 1804 Jeffersonian Republicans attempted to remove Supreme Court Chief Justice Samuel Chase, who they viewed as openly partisan and biased against their party.10 The allegations against Chief Justice Chase included that he acted in an “arbitrary, oppressive, and unjust manner” at trial, misapplied the law, and expressed partisan political views to a grand jury.11 The attempt failed, and Congress has never removed a federal judge for disagreement with the law’s application or because of difference in political views. Based on this historical practice, the good behavior standard arguably guards against the removal of a federal judge for disagreement with the law’s interpretation or political disagreements.

That said, the Good Behavior Clause and the attendant clauses expressly dealing with impeachment do not insulate federal judges from criminal prosecutions.12 For instance, Judge Harry E. Claiborne, before being impeached and removed from office as a federal judge, challenged his indictment and prosecution as unconstitutional.13 Specifically, he argued that the Constitution’s vesting of the impeachment power in Congress precludes the criminal prosecution of an Article III judge unless he is first impeached and removed from office.14 The U.S. Court of Appeals for the Ninth Circuit rejected this argument, concluding that the Constitution’s distinction between impeachment and criminal liability was meant to ensure that no individual who had been impeached and removed could claim double jeopardy as a shield against subsequent criminal prosecution.15 Further, a criminal conviction does not “remove” an individual from office; Congress retains exclusive power to do so through the constitutional mechanism of impeachment.16 Likewise, the Ninth Circuit rejected Claiborne’s argument that it violates separation of powers for the Executive Branch to possess authority to bring criminal prosecutions against sitting Article III judges.17 The court noted that potential defendants receive the same protections that ordinary citizens do, and criminal behavior is not part of a government official’s duties.18 Further, insulating federal judges from criminal liability would elevate them above the requirements of the very law they are entrusted with adjudicating fairly.19

Notes
  1. RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 122–80 (1973) (arguing that the good behavior standard is distinct from “high crimes and misdemeanors” and Congress may remove judges whose “misbehavior” does not constitute a high crime or misdemeanor); Saikrishna Prakash, Steven D. Smith, How to Remove A Federal Judge, 116 YALE L.J. 72, 78 (2006) (“Congress . . . may establish any number of mechanisms for determining whether a judge has forfeited her office through misbehavior. . . . Congress can pass statutes that help implement the federal government’s authority to remove federal judges who have misbehaved.”); see 3 LEWIS DESCHLER, PRECEDENTS OF THE UNITED STATES OF THE HOUSE OF REPRESENTATIVES, H.R. DOC. NO. 94-661, at Ch. 14 § 3.9 (1974), https://www.govinfo.gov/content/pkg/GPO-HPREC-DESCHLERS-V3/pdf/GPO-HPREC-DESCHLERS-V3.pdf. ↩
  2. Judith Rosenbaum et al., A Constitutional Perspective on Judicial Tenure, 61 JUDICATURE 465, 474 (1978) (claiming that the terms were interchangeable for the Framers). ↩
  3. See STAFF OF H. COMM. ON THE JUDICIARY, 93D CONG., IMPEACHMENT, SELECTED MATERIALS 666 (Comm. Print 1973). ↩
  4. See CHARLES W. JOHNSON, JOHN V. SULLIVAN, AND THOMAS J. WICKHAM, JR., HOUSE PRACTICE: A GUIDE TO THE RULES, PRECEDENTS AND PROCEDURES OF THE HOUSE 608–13 (2017); IMPEACHMENT, SELECTED MATERIALS, supra note 3, at 666; STAFF OF H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT 17 (Comm. Print 1974); H.R. REP. NO. 105-830, at 110–18. ↩
  5. See ArtI.S3.C6.3 Impeachment Trial Practices and ArtII.S4.4.1 Overview of Impeachable Offenses et seq. ↩
  6. See 12 ANNALS OF CONG. 642 (1803); 13 ANNALS OF CONG. 380 (1803); 13 ANNALS OF CONG. 368 (1804). ↩
  7. 2 ASHER C. HINDS, HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2385–97 (1907), https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V2/pdf/GPO-HPREC-HINDS-V2.pdf. ↩
  8. 135 CONG. REC. S14,633–39 (daily ed. Nov. 3, 1989) (removing Judge Walter L. Nixon for lying to a grand jury); 132 CONG. REC. 29,870–72 (1986) (removing Judge Harry E. Claiborne for providing false statements on his income tax returns). ↩
  9. President Clinton was impeached, but not convicted, for perjury to a grand jury. See discussion in ArtII.S4.4.8 President Bill Clinton and Impeachable Offenses. In the effort to impeach President Nixon, one of the articles of impeachment rejected by the House Judiciary Committee concerned tax evasion. See discussion in ArtII.S4.4.7 President Richard Nixon and Impeachable Offenses. ↩
  10. 13 ANNALS OF CONG. 1180 (1804). ↩
  11. IMPEACHMENT, SELECTED MATERIALS, supra note 3, at 133–35. ↩
  12. See generally Chandler v. Judicial Council of Tenth Circuit of U.S., 398 U.S. 74, 140 (1970) (Douglas, J., dissenting) (“Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by Congress.”). ↩
  13. United States v. Claiborne, 727 F.2d 842, 849 (9th Cir. 1984). See also United States v. Hastings, 681 F.2d 706, 709–11 (11th Cir. 1982) (rejecting similar claims), stay denied, 459 U.S. 1203 (1982); United States v. Isaacs, 493 F.2d 1124, 1141–44 (7th Cir. 1974) (same), cert. denied sub nom., 417 U.S. 976 (1974). ↩
  14. Claiborne, 727 F.2d at 845–46. ↩
  15. Id. at 846. ↩
  16. Id. ↩
  17. Id. at 849. ↩
  18. Id. at 848. ↩
  19. Id. at 849. ↩

ArtIII.S1.10.3 Compensation

ArtIII.S1.10.3.1 Historical Background on Compensation Clause

The Supreme Court has stated, “The Compensation Clause has its roots in the longstanding Anglo-American tradition of an independent Judiciary. A Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government.”1 Before the Revolutionary War, American colonists recognized the role of judicial compensation in maintaining the independence of the Judiciary. Among other things, the Declaration of Independence objected to the fact that the King had “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”2

From the beginning of the Constitutional Convention, the Framers embraced salary protection as one means of bolstering judicial independence. The first resolution on the Judiciary introduced at the Convention provided that judges would “receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution.”3 Following debate, the prohibition on judicial salary increases was removed to allow Congress to adapt judicial pay to changing circumstances, but the prohibition on decreasing judicial salaries remained.4 Alexander Hamilton highlighted the Compensation Clause in the Federalist Papers, asserting that, “next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support,” because, “[i]n the general course of human nature, a power over a man’s subsistence amounts to a power over his will.”5 Chief Justice John Marshall later asserted that judges must have the independence to protect the poor and unpopular, and that the “greatest scourge” was an “ignorant, a corrupt, or a dependent Judiciary.”6

Notes
  1. United States v. Will, 449 U.S. 200, 217–18 (1980). ↩
  2. THE DECLARATION OF INDEPENDENCE para. 11 (U.S. 1776). ↩
  3. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 244 (Max Farrand ed., 1911). ↩
  4. 2 id. at 45. See also, e.g., id (statement of Gouverner Morris that “[t]he value of money may not only alter but the State of Society may alter. In this event the same quantity of wheat, the same value would not be the same compensation. The Amount of salaries must always be regulated by the manners & the style of living in a Country”). ↩
  5. THE FEDERALIST NO. 79 (Alexander Hamilton). ↩
  6. United States v. Hatter, 532 U.S. 557 (2001) (quoting PROCEEDINGS AND DEBATES OF THE VIRGINIA STATE CONVENTION, OF 1829–1830, p. 619 (1830)). ↩

ArtIII.S1.10.3.2 Compensation Clause Doctrine

The Compensation Clause allows Congress to increase judicial salaries, but not to decrease them. During the Great Depression, Congress enacted appropriations legislation reducing “the salaries and retired pay of all judges (except judges whose compensation may not, under the Constitution, be diminished during their continuance in office)” by a fixed amount.1 The statute avoided constitutional issues by expressly incorporating the limits of the Compensation Clause, but it sparked Supreme Court litigation to determine which federal judges were subject to the salary reduction. Ultimately, the Court held that judges of the District of Columbia courts were Article III judges who enjoyed constitutional salary protection and could not be subject to the statute.2 On the other hand, the Court held that judges of the Court of Claims, a legislative court, could have their salaries reduced.3

Once a judicial salary increase has gone into effect, the Compensation Clause bars Congress from reducing or rescinding any part of the increase. However, Congress may alter a promised future increase before it becomes effective. Thus, in United States v. Will, the Court held that Congress could repeal or modify a statutorily defined formula for annual cost-of-living increases to the compensation of federal judges, but must act with respect to any particular increase before the increase takes effect.4 To illustrate, in one of the years at issue in Will, a planned salary increase took effect on October 1, but the President signed a bill reducing the amount that same day. The Court held that the increase had gone into effect by the time the reduction was signed, rendering the reduction invalid.5 Moreover, although the salary reductions in Will applied to various officials in all three branches of government, the Court further held that even a general, nondiscriminatory salary reduction, affecting judges but not aimed solely at them, is covered by the Compensation Clause.6

A separate question that has sparked Supreme Court litigation is whether the Compensation Clause limits Congress’s power to increase the amount of federal income tax Article III judges pay. In Evans v. Gore, the Court invalidated the application of a 1919 income tax law to a sitting federal judge.7 The Court extended that ruling in Miles v. Graham to exempt the salary of a judge of the Court of Claims appointed after the enactment of the relevant tax law.8 In the 1939 case O’Malley v. Woodrough, the court disapproved of Evans and effectively overruled Miles, upholding a provision of the Revenue Act of 1932 that extended application of the income tax to salaries of judges taking office after June 6, 1932.9 The Court regarded the tax neither as an unconstitutional diminution of the compensation of judges nor as an encroachment on the independence of the Judiciary.10 To subject judges who take office after a stipulated date to a nondiscriminatory income tax, said the Court, “is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering.”11

The Court formally overruled Evans in the 2001 case United States v. Hatter.12 The Hatter Court reaffirmed the principle that judges should “share the tax burdens borne by all citizens,”13 holding that “the potential threats to judicial independence that underlie [the Compensation Clause] cannot justify a special judicial exemption from a commonly shared tax.”14 The Court held that the Medicare tax, which was extended to all federal employees in 1982, was a non-discriminatory tax that could be applied to federal judges.15 By contrast, the Court ruled that the 1983 extension of a Social Security tax to then-sitting judges violated the Compensation Clause, because judges were required to participate while almost all other federal employees were given a choice about participation.16 Nor had Congress cured the constitutional violation by a subsequent enactment that raised judges’ salaries by an amount greater than the amount of Social Security taxes that they were required to pay.17

Notes
  1. Legislative Appropriation Act of June 30, 1932, ch. 314, 47 Stat. 382, 401. ↩
  2. O’Donoghue v. United States, 289 U.S. 516 (1933). Congress later established two sets of courts in the District: federal courts, created pursuant to Article III, and local courts equivalent to state and territorial courts, created pursuant to Article I. For further discussion of the constitutional status of the District of Columbia Courts, see ArtIII.S1.9.4 District of Columbia and Territorial Courts. ↩
  3. Williams v. United States, 289 U.S. 553 (1933). But see Glidden Co. v. Zdanok, 370 U.S. 530 (1962). ↩
  4. 449 U.S. 200 (1980). ↩
  5. Id. at 224–25. ↩
  6. Id. at 226. ↩
  7. 253 U.S. 245 (1920). ↩
  8. 268 U.S. 501 (1925). ↩
  9. 307 U.S. 277 (1939). ↩
  10. Id. at 278–82. ↩
  11. Id. at 282. ↩
  12. 532 U.S. 557 (2001). ↩
  13. Id. at 571. ↩
  14. Id. ↩
  15. Id. at 572. ↩
  16. Id. ↩
  17. Id. at 578–81. ↩