Lifetime Appointments to the Court

How did life tenure for Judges come to exist, why was it included in the American Constitution, and is it truly a cornerstone of the American Constitutional Order?

While revolutionary both in structure and precedent, the American Constitution drew heavily on known lessons learned from the English legal experience. One such lesson was the need for an independent judiciary—one where judicial officers did not rely on the will of the King alone for their positions and authority. Despite totally overthrowing the monarchical legal authority during the American Revolution, the Framers extended the English legal innovations providing judicial independence to our Federal judges, and pushed these notions to their logical extreme: life tenure, removal only for bad behavior, and irreducible salaries—all commanded by the Constitution. But this outcome was not assured, as the debate over adding a constitutional provision allowing the removing of Federal judges continued from the opening of the Constitutional Convention for nearly 30 years, finally concluding with a failed Constitutional Amendment in 1811.

English Origins of Judicial Independence

As Mel Brooks once infamously quipped, “it’s good to be the King.” Though playing the soon-to-be-beheaded King Louis XVI of France and speaking of his unchecked sexual improprieties with unwilling female subjects, this line brilliantly understates the absolute and terrifying power European Monarchs wielded throughout much of history. In such systems, the Monarch is sovereign—all power flows from and through the crown. The judicial system is no exception.

But as English law developed out of its primordial, Medieval substrate, it became apparent that the impartial administration of justice was impeded by the fear of a crown (or potentially a guillotine) floating over the judge’s heads when rendering decisions—most especially decisions against the King. This reality stood in direct conflict with the development of English common law’s developing protection of individual rights, impartiality and consistency of legal decisions, and burgeoning theories of separation of powers. Thus, the English law developed a number of innovations intended to mute or eliminate these conflicts.

Balancing the King’s Terrific Power with Life Tenure, Good Behavior, and Fixed Salaries

Personal independence for judges in England developed over many centuries leading into America’s Revolution. Initially coming in the form of small concessions from the King, English judges would slowly be secured in their independence with life tenure, during good behavior, and a salary immune from reduction. Though these protections never became ubiquitous and uniform for all judicial positions in England, they represented tremendous innovations advancing the impartiality of justice. As Alexander Hamilton proclaimed, “[t]he standard of good behaviour 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.”¹ 

To understand why Alexander Hamilton (and many other Framers) believed these innovations promoting judicial independence in such high regard, one must understand the development of this standard in England: the conflicts which created the need, the gravity of the need itself, and how well judicial independence ameliorated that need.

Joseph Story brilliantly expounded the initial conditions giving rise to the need to create judicial independence in England. There, “the king is considered, as the fountain of justice; not indeed as the author, but as the distributer of it; and he possesses the exclusive prerogative of erecting courts of judicature, and appointing the judges.”² Headed by a hereditary monarch, English government and legal systems were designed and developed around the Monarch’s authority. The judicial system is no exception.

In antiquity, the King was the judicial system. But as history progressed, it became increasingly difficult and eventually impossible for the King to hear cases. To effectuate the administration of justice, the King needed to at least empower subordinates to hear and try cases, eventually leading to the devolution of the judicial power from the King to the courts.

Indeed, in early times, the kings of England often in person heard and decided causes between party and party. But as the constitution of government became more settled, the whole judicial power was delegated to the judges of the several courts of justice; and any attempt, on the part of the king, now to exercise it in person, would be deemed an usurpation.³  

Simply establishing a court system, however, does nothing to actually ensure that justice is impartially administered throughout a Kingdom. Courts require judges, and so naturally enough the King would appoint officers to serve in that role. But, at this stage of England’s historical development, a King with the power to appoint was a King with the power to remove. This reality created untoward pressures on judicial officers.

It is certain, that this power of the crown must have produced an influence upon the administration, dangerous to private rights, and subversive of the public liberties of the subjects. In political accusations, in an especial manner, it must often have produced the most disgraceful compliances with the wishes of the crown; and the most humiliating surrenders of the rights of the accused.⁴ 

Historically, all judicial officers served at the pleasure of the crown, during a tenure of the crown’s choosing. “Anciently, the English judges held their offices according to the tenure of their commissions, as prescribed by the crown, which was generally during the pleasure of the crown, as is the tenure of office of the Lord Chancellor, the judges of the courts of admiralty, and others, down to the present day.”⁵

As Joseph Story chronicles, however, by the late 1500’s, England began to shield some judicial officers from the pernicious influence of the Crown by implementing an objective standard for continuation in judicial office. This standard is tenure in office during good behavior. As opposed to the first standard, service at the pleasure of the crown, permitting some judges to serve during good behavior prevented those judges from being coerced or threatened by the Crown arbitrarily. This standard was expanded over time.  “In the time of Lord Coke, the Barons of the Exchequer held their offices during good behaviour, while the judges of the other courts of common law held them only during pleasure. And . . . [during] restoration of Charles the Second, the commissions of the judges were during good behaviour.”⁶ 

This innovation in English law—the standard of good behavior—began to take hold during a tumultuous and consequential period in English History. As the Sixteenth Century ended and the Seventeenth Century began, England found itself in political turmoil—civil war, religious struggles, succession crises, and revolution. Underlying most of the instability was the struggle between the Monarchy and an increasingly-powerful Parliament for primacy in the English legal order. Ultimately, with the Glorious Revolution of 1688 and the Bill of Rights 1689, Parliament secured its dominance over the Monarchy in the English System. Newly emboldened and empowered, the Parliament began to assert its dominance and circumscribe or limit the Monarch’s power in a variety of spheres.

One major Parliamentary advance was The Act of Settlement of 1701, passed to ameliorate a succession crisis and install Sophia of Hanover as Monarch (to dethrone Charles I’s line). Importantly, too, the Act included a significant change to the Monarch’s power over the removal of judges sitting in common law courts. The Settlement officially eliminated the previous standard, durante bene placito (pleasure of the crown) and replaced it with quam diu bene se gesserint (good behavior). The Parliament did not completely divest the Monarch of all power to remove all judges, however, as they could still be removed, “by the king, upon the address of both houses of parliament; and their offices expired by the demise of the king.”⁷

The English legal experiment with judicial independence was thus underway, despite only protecting a fraction of judges with tenure during good behavior. Systemic improvements resulting from this experiment impelled the English to push forward with other variations on judicial independence. Undoubtedly, job security certainly helps ensure the impartial administration of justice, but as Alexander Hamilton said, “a power over a man’s subsistence amounts to a power over his will.”⁸ Reforms allowing judges continue to hold their positions would do little to insulate the judge if the judge is no longer being paid to hold that office. This reality was not lost on the English.

Eventually, King George III—the King of England during America’s Revolution—recommended Parliament pass a law requiring that every judge hold their office during good behavior, including after the death of a Monarch, and to secure their salaries during their commission. The Parliament obliged. Both the King of England and Joseph Story extolled the virtue and importance of this act:

Upon that occasion, the monarch made a declaration, worthy of perpetual remembrance, that “he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown.” Indeed, since the independence of the judges has been secured by this permanent duration of office, the administration of justice has, with a single exception, flowed on in England, with an uninterrupted, and pure, and unstained current. It is due to the enlightened tribunals of that nation to declare, that their learning, integrity, and impartiality, have commanded the reverence and respect, as well of America, as Europe.⁹

The Constitutional Independence of American Judiciary

Unfortunately for the American Colonists, despite major concessions to the Parliament in England, the Monarchy would retain enormous power over the administration of justice in its possessions overseas. As with the Privy Council, legal reforms promoting the independence of judges did not spread beyond the shores of England. In fact, throughout the Colonial Era, England continued with the practice of keeping judges only at the pleasure of the crown in the Colonies—denying Americans the relief resulting from these innovations becoming increasingly-entrenched in English law.

The American Colonists, who believed themselves to be every bit as English and imbued with all the same rights as Englishmen, had witnessed these advancements in judicial independence taking place in England and incredible legal improvements resulting therefrom. But they were denied the benefits of these advancements. This disappointment contributed significantly to the Revolutionary attitudes expressed in the American Colonies, ultimately culminating in the Declaration of Independence. Thomas Jefferson specifically articulated this grievance in the document: “He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.—He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

This complaint did not only manifest in the Declaration of Independence itself. As the American Revolution took course, numerous states adopted constitutional provisions or made declarations intending to forever instantiate judicial independence in their jurisdictions. The Maryland Constitution of 1776, for example, created a constitutional protection for the tenure of judicial officers while exhibiting good behavior. “That the Chancellor, all Judges, the Attorney- General, Clerks of the General Court, the Clerks of the County Courts, the Registers of the Land Office, and the Registers of Wills, shall hold their commissions during good behaviour, removable only for misbehaviour, on conviction in a Court of law.” Delaware similarly pronounced the importance of judicial independence in its 1776 Declaration of Rights, stating, “[t]hat the Independency and Uprightness of Judges are essential to the impartial Administration of Justice, and a great Security to the Rights and Liberties of the People.”

Thus, prior to the adoption of the Constitution, States and the Citizens thereof proclaimed their strong support for an independent judiciary—though such efforts only constituted internal, intra-state judicial independence. In adopting the Constitution, however, the Framers would institute a national federal judiciary that had not only secured the complete personal independence of judges—through life tenure, good behavior, and fixed salaries—but also the judiciary’s Constitutional Independence as a whole.

Personal Independence: Tenure, Behavior, Salary

Article III Section 1 of the Constitution commands that Federal judges will have tenure so long as they maintain good behavior, and shall not have their salaries diminished.

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.

In so doing, the Framers of the Constitution expanded the English experiment in personally-secured judicial independence into a judiciary-wide, constitutional command. The reasons were simple: English history proved that insulating judges from personal coercion by other elements of the government radically improves the chances that judges will feel pressure to save their own neck and will feel secure in handing down just results, regardless of whether others in power are offended. Article III, Section 1 of the Constitution took this lesson to its logical extreme, which was not seen in England, as Joseph Story explained:

It is observable, that the constitution has declared, that the judges of the inferior courts, as well as of the Supreme Court, of the United States, shall hold their offices during good behaviour. In this respect there is a marked contrast between the English government and our own. In England the tenure is exclusively confined to the judges of the superior courts, and does not (as we have already seen) even embrace all of these.¹⁰

James Wilson flatly articulated the reasoning behind expanding these protections to all Federal judges. “In their salaries, and in their offices, they ought to be completely independent: in other words, they should be removed from the most distant apprehension of being affected, in their judicial character and capacity, by any thing, except their own behaviour and its consequences.”¹¹ 

But should Federal judges display such ‘bad’ behavior, they could be removed according to the impeachment provisions of Article II, Section 4. “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Though not explicitly including Federal judges by name, the prevailing understanding of the Convention was that they too would be subject to this impeachment protocol.

America’s Novel Constitutional and Legal Independence of the Judiciary

Aside from completing the English project by Constitutionally ensuring personal independence for all Federal judges, the Constitution of the United States also radically redefined foundational structural precepts of English law by making the Federal Judiciary its own, independent, coequal branch of government. The earliest English judiciary initially developed within the King’s executive power, and it was not until the creation of the Supreme Court of the United Kingdom in 2009 that the English judiciary would finally become a fully-independent branch of English government. At the time of the Founding, though, the judicial system in England was largely nested within the Parliament. Outside of England proper, specifically the American Colonies, the judiciary existed largely within or subordinate to the King’s Privy Council—a quasi-judicial body with the power to nullify laws passed by Colonial legislatures—and the local judicial system being housed within the Colonial Governor’s power.

But after the American Colonies severed political ties with the crown, the Framers had a unique opportunity to create a constitutional structure anew—free from the historical scars, vested interests, and political realities that gave rise to the then-existing English legal order. One of the most transformative—and, for lack of a better word—revolutionary aspects of the American Constitution was the quite intentional decision to establish a wholly co-equal third branch—the American Judiciary. 

Aside from actualizing Montesquieu's envisioned tripartite government—judicial, legislative, and executive power divided into branches accordingly—for successful operation, the Constitution required the Federal Judiciary be capable of holding its own against the other two branches of government, and not wither on the vine into constitutional irrelevancy.

Many Framers assumed the Judicial branch to be the weakest of the three branches by its very nature—and thus had to be fortified and empowered to withstand encroachments from the two more imposing political branches. Alexander Hamilton’s Federalist 78 is the most famous pronouncements to this effect:

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. 

Critiques of Constitutionally Mandating Life Tenure

The opponents of complete, constitutional judicial independence made two general sorts of arguments: first, that the fundamental differences between the English Monarchy and the American Republic lessened the need for English-style judicial independence, and second, that practical reasons abound for allowing the removal of Federal judges outside of the impeachment context.

Fundamental Distinctions Exist Between England and America

Some felt overthrowing the king and creating a republic in the place of a monarchy fundamentally transformed the relationship between the branches of government, and thus the English legal innovations might not be calibrated appropriately for the newly-founded, kingless Republic. As Brutus began no. 15, “Though in my opinion the judges ought to hold their offices during good behaviour, yet I think it is clear, that the reasons in favour of this establishment of the judges in England, do by no means apply to this country.”

Brutus spent considerable time articulating the some familiar pressures on English judges stemming from their relationship with the Crown: 

While the judges held their places at the will and pleasure of the king, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence. If the crown wished to carry a favorite point, to accomplish which the aid of the courts of law was necessary, the pleasure of the king would be signified to the judges. And it required the spirit of a martyr, for the judges to determine contrary to the king’s will.—They were absolutely dependent upon him both for their offices and livings.

A King rules for life, with title bequeathed hereditarily—thus, judges appointed by the king were given office for life as a balance to these interests of the King. In America, judges are appointed by the legislature and executive, both serving in office for a term of years. This fundamental distinction, according to Brutus, poses fundamental problems for the blanket extension of English protections in America:

The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods, or even for life. Hence the English nation gained a great point, in favour of liberty. When they obtained the appointment of the judges, during good behaviour, they got from the crown a concession, which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people. But these reasons do not apply to this country, we have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children. The same arguments, therefore, which will conclude in favor of the tenor of the judge’s offices for good behaviour, lose a considerable part of their weight when applied to the state and condition of America. 

But not all observers agreed with the notion that America’s status as a Republic lessened the need for the English-style guarantees of personal independence for judges. St. George Tucker argued that in fact, the protections offered by personal independence for judges were just as necessary in a Republic as they were in a Monarchy.

This absolute independence of the judiciary, both of the executive and the legislative departments, which I contend is to be found, both in the letter, and spirit of our constitutions, is not less necessary to the liberty and security of the citizen, and his property, in a republican government, than in a monarchy: if in the latter, the will of the prince may be considered as likely to influence the conduct of judges created occasionally, and holding their offices only during his pleasure, more especially in cases where a criminal prosecution may be carried on by his orders, and supported by his influence; in a republic, on the other hand, the violence and malignity of party spirit, as well in the legislature, as in the executive, requires not less the intervention of a calm, temperate, upright, and independent judiciary, to prevent that violence and malignity from exerting itself “to crush in dust and ashes” all opponents to it’s tyrannical administration, or ambitious projects. Such an independence can never be perfectly attained, but by a constitutional tenure of office, equally independent of the frowns and smiles of the other branches of the government.¹²

Stated differently, removing the King did not not ameliorate the need for complete personal independence for judges, as removing the King from the equation only made room for the pernicious threats of factionalism, sectionalism, and politics generally to fill his place. Thus, according to such arguments, insulating the judiciary from the whims of the political branches in America was just as necessary as insulating the judiciary from any undue influence of the King.

Alexander Hamilton articulated a similar argument in Federalist No. 78:

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. 

The Peculiar Dangers of Life Tenure in America’s Constitutional Order

In addition to guaranteeing personal independence of judges, the Constitution also created a wholly-independent Judicial Branch. Unlike in England, where the courts were largely nested within other departments, the Federal judicial branch was instantiated to stand on its own. In England, the House of Lords sat above the courts, empowering the Legislative to oversee the decisions of the courts. The Framers rejected such a framework. No such structure of oversight of the courts exist in the Constitution and thus the Federal Courts—specifically the Supreme Court—have no authority above them to control their decisions. 

For thinkers like Brutus, this lack of control or influence over the Federal Judiciary, when combined with their constitutionally-guaranteed personal judicial independence created a tremendous threat to the long-term viability of the Constitutional American order. 

I do not object to the judges holding their commissions during good behaviour. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behavior, and have fixed salaries, they have made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven.

Despite the Anti-Federalists losing the battle over the constitution—Brutus’s arguments would continue to live on. As will be detailed below, Thomas Jefferson continued making similar arguments almost until his death.

The Purely Practical Arguments Against Life Tenure During Good Behavior

Not all opponents of American-style judicial independence couched their opposition to the concept in terms of deeply-considered constitutional theory. Many simply made the practical argument that removing inane or insane judges makes perfectly good sense; and the argument for complete, constitutionally-required judicial independence systemically fails when considering individual judges. Being insane or inane is not a crime—much less a high crime or misdemeanor—and therefore bad judges will be allowed to be bad judges until they die, retire, or commit an actual high crime or misdemeanor. 

Brutus explains the difficulties posed by this constitutional requirement when it comes to individually-incompetent judges.

Errors in judgement, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will shew, that the judges commited the error from wicked and corrupt motives.

Whether wicked or merely wanting of capacity, the effects of either are the same: a miscarriage of justice. Whenever a judge rules incorrectly, whether due to corruption or due to insanity—the fact remains, the judge has ruled incorrectly. 

Others argued that the constitutional provisions requiring a two-thirds vote of the legislature for the removal of Federal judges posed a severe limitation on the practical possibility of removal, essentially ensuring no judges would ever be removed—even for bad behavior. As Thomas Jefferson explained:

Before the revolution we were all good English Whigs, cordial in their free principles, and in their jealousies of their executive Magistrate. These jealousies are very apparent in all our state constitutions; and, in the general government in this instance, we have gone even beyond the English caution, by requiring a vote of two thirds in one of the Houses for removing a judge; a vote so impossible where any defence is made, before men of ordinary prejudices & passions, that our judges are effectually independent of the nation.¹³ 

Jefferson also argued that giving judges life tenure, during good behavior, with fixed salaries itself was not properly counterweighted—as mere promises to appoint ‘good men’ to the bench does nothing in reality to combat the threat posed by life appointments. 

It is not enough that honest men are appointed judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed that “it is the office of a good judge to enlarge his jurisdiction,” and the absence of responsibility, and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual state from which they have nothing to hope or fear.¹⁴

To Jefferson, it was quite simple. America institutionalizes maniacs, and therefore America ought to be able to remove bad judges from the bench; whether the judges erred intentionally or not.

I repeat that I do not charge the judges with wilful and ill- intentioned error; but honest error must be arrested where it’s toleration leads to public ruin. As, for the safety of society, we commit honest maniacs to Bedlam, so judges should be withdrawn from their bench, whose erroneous biases are leading us to dissolution. It may indeed injure them in fame or in fortune; but it saves the republic, which is the first and supreme law.¹⁵

In response to those wishing to remove justices from the bench due to a want of capacity, supporters of the good behavior standard argued it was impossible to determine with any certainty where to draw the line with respect to diminished capacity. Allowing the removal of judges due to their cognitive decline or insufficiency would open pandora’s box—for making an objective determination on the status of a person’s mental facilities was simply impossible. Thus, the standard for removal would become subjective, which then puts judges right back into the compromised position that life tenure, good behavior, and irreducible salaries were intended to preclude. As Joseph story explains:

A proposition of a more imposing nature was to authorize a removal of judges for inability to discharge the duties of their offices. But all considerate persons will readily perceive, that such a provision would either not be practised upon, or would be more liable to abuse, than calculated to answer any good purpose. The mensuration of the faculties of the mind has no place in the catalogue of any known art or science. An attempt to fix the boundary between the region of ability and inability would much oftener give rise to personal, or party attachments and hostilities, than advance the interests of justice, or the public good. And instances of absolute imbecility would be too rare to justify the introduction of so dangerous a provision.¹⁶ 

Alexander Hamilton made a similar argument, that including the power to remove senile or incompetent justices would essentially result in arbitrary removal of judges and undo all concepts of judicial independence.

The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities, than advance the interests of justice, or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity without any formal or express provision, may be safely pronounced to be a virtual disqualification. 

Thus constituted the main debate over removing federal judges. This debate would continue from the calling of the Constitutional Convention through to the War of 1812.

The Two Failed Efforts to Constitutionally Permit the Removal of Judges

The forces calling for a constitutional mechanism to remove federal judges would make multiple efforts to add this concept into the constitution during the first decades of the American Republic. The delegates to the Constitutional Convention were the first to take up the issue, as they repeatedly considered whether to add provisions to the Constitution making members of the Federal Judiciary removable beyond impeachment, either by the executive, legislature, or some combination thereof. The creation of the Federal Judiciary did not progress linearly at the Convention. Multiple drafts of provisions detailing the appointment process were presented and considered throughout the Convention—and the earlier drafts did not mention nor consider any provisions for the removal of justices.

By mid-August 1787, however, the delegates to the Constitutional Convention began to seriously consider provisions allowing for the removal of Federal judges outside of the impeachment context. On August 27, John Dickinson of Pennsylvania moved for the addition of a provision which would make members of the Federal Judiciary removable by the President on application to the House and Senate. Elbridge Gerry of Massachusetts seconded the motion, with Roger Sherman of Connecticut arguing in its favor by pointing out England had a very similar procedure for the removal of judges.

Among the opponents of this provision were Gouvernor Morris of New York, Edward Rutledge of South Carolina, and James Wilson of Pennsylvania. Gouvernor Morris found that such a removal provision would be incompatible with the good behavior standard—because then in theory, the good behavior clause was rendered a nullity if the political branches could remove judges for reasons other than bad behavior. Edward Rutledge argued because the Supreme Court would be the arbiter between the United States government and the several states, making Supreme Court justices removable by the Federal government potentiated the Federal government unduly swaying the court against the States. James Wilson was convinced that the House and Senate would collude to remove politically-problematic judges.

Ultimately, Dickinson’s motion failed at the Convention, with only one state supporting the motion, seven voting against it, and with three state abstentions., But this vote at the convention did not end the debate, and by the revolution of 1800, Thomas Jefferson and his Democratic allies sought to remove the so-called Midnight Judges. After Thomas Jefferson defeated John Adams in the 1800 presidential election, Adams and his Federalist Allies used the lame-duck period of his presidency to appoint as many new justices of the peace as possible before Jefferson became President to frustrate his term in office. The last-minute nature of these appointments, however, lead to some of the commissions never making their way physically to those selected for the role—and when Thomas Jefferson became president, he ordered his new administration to bury these commissions.

One of the appointees who subsequently barred from receiving their commission, William Marbury, sued for his commission—and the Supreme Court handed down one of the Court’s landmark cases. Chief Justice John Marshall’s opinion in Marbury v. Madison is a complex, intricate case which among other things, instantiated the Constitution’s superiority over mere acts of the legislature in addition to cementing the concept of Judicial review into the American constitutional order. 

Specifically, Marbury considered whether the Executive Branch could deny judicial appointees their commissions—commissions created by duly-enacted legislation and signed by a former President—by executive action. Chief Justice Marshall wasted no time in declaring such actions by the President to be void.

Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled: it has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made. But having once made the appointment, his power over the office is terminated, in all cases where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. 

Because the Congress created five-year tenure for these judicial offices (and in the absence of statutory authorization for removal by the executive) the executive was powerless to divest those officeholders of their commissions.

Thus in so doing, Chief Justice Marshall slammed the door shut on a potential extra-constitutional avenue for the other branches of the Federal Government to interfere with the tenures of judicial appointees. Unless authorized to remove such judicial appointees at will, the President is powerless to terminate their vested legal right to hold office prior to the expiration of the office. With the constitutional command that members of the Federal Judiciary hold their offices during good behavior, then, under Marbury, it should be clear that no Executive could effectively remove a duly-appointed justice by withholding the delivery of their commission—or by means of any other procedural gadgets which might be subsequently invented to effectuate the same.

After Marbury, one final attempt to amend the constitution to allow the removal of Federal judges was made. In 1811, Maryland Congressman Robert Wright proposed a constitutional amendment in the Congress allowing for the removal of Federal Justices by joint address of the House and Senate. Like other such efforts, Congressman Wright’s amendment died with a whimper.

Mr. Wright called for the consideration of the resolution submitted by him on Wednesday last, in the following words:

Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, That the following section be submitted to the Legislatures of the several States; which, when ratified by the Legislatures of three- fourths of the States, shall be valid and binding as a part of the Constitution of the United States:

“The Judges of the Supreme Court and inferior courts, may be removed from office by the joint address of the Senate and House of Representatives of the United States.”

Mr. W. wished it considered barely with a view to a reference to a Committee of the Whole, and to make it the order of the day for some distant day.

The House refused to consider the resolution; 53 to 38.

Though the failure of Mr. Wright’s Amendment marked the last serious attempt to constitutionally allow for the removal of Federal judges, dissenters remained. In his 1821 autobiography, Thomas Jefferson lamented the failure to include a constitutional means to remove Federal judges. 

But there was another amendment of which none of us thought at the time and in the omission of which lurks the germ that is to destroy this happy combination of National powers in the General government for matters of National concern, and independent powers in the states for what concerns the states severally. 

Jefferson was certainly aware of the theoretical support for the independence of the judiciary, but argued that additional modest controls over Federal judges were necessary.

I would not indeed make them dependant on the Executive authority, as they formerly were in England; but I deem it indispensable to the continuance of this government that they should be submitted to some practical & impartial controul: and that this, to be imparted, must be compounded of a mixture of state and federal authorities.

Thomas Jefferson was gravely concerned that with the failure to implement controls over the Federal Judiciary, the judiciary would do what all powerful bodies tend to do—accumulate more power. Such accumulations of power are dangerous in and of themselves, but under the Federal Constitution, these accumulations would directly threaten the States. And without the ability to remove justices guilty of such behavior, there would be no constitutional mechanism to avert this disaster. Jefferson’s lament, therefore, is a strong echo of Brutus—good behavior, life tenure, and fixed salaries are fantastic, but with America’s complete constitutional judicial independence, the judges could not be stopped should they begin to undermine the American Constitutional order.

To this bias add that of the esprit de corps, of their peculiar maxim and creed that “it is the office of a good judge to enlarge his jurisdiction,” and the absence of responsibility, and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual state from which they have nothing to hope or fear. We have seen too that, contrary to all correct example, they are in the habit of going out of the question before them, to throw an anchor ahead and grapple further hold for future advances of power. They are then in fact the corps of sappers & miners, steadily working to undermine the independant rights of the States, & to consolidate all power in the hands of that government in which they have so important a freehold estate. 

Thomas Jefferson would die five years after the publication of his Autobiography, and so he did not live long enough to see how closely his predictions presaged the contours of American Legal History. 

1. The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 11: Hamilton, Alexander; Madison, James; and Jay, John. The Federalist Papers, 521–30. Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.

2. The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 38: Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833. (“Story, Commentaries on the Constitution”).

3. Id.

4. Id.

5. Id.

6. Id.

7. Story, Commentaries on the Constitution, at §1602.

8. The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 12: Hamilton, Alexander; Madison, James; and Jay, John. The Federalist, 531–34. Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.

9. Story, Commentaries on the Constitution, at §1602.

10. Story, Commentaries on the Constitution, at §1621.

11. The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 15: The Works of James Wilson, 1:296–97. Edited by Robert Green McCloskey. 2 vols. Cambridge: Belknap Press of Harvard University Press, 1967.

12.  The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 26: Tucker, St. George. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.

13. The Founders’ Constitution, Vol. 1, Chap. 8 (Federal v. Consolidated Government), Doc. 44: The Works of Thomas Jefferson, 1:120–23. Collected and edited by Paul Leicester Ford. Federal Edition. 12 vols. New York and London: G. P. Putnam’s Sons, 1904–05.

14. Id.

15. Id.

16. Story, Commentaries on the Constitution, at §1619.