Article III, Section 1 — 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

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

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

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

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

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