Good Behavior Clause

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour....

Article III, Section 1

The Good Behavior Clause of Article III is the foundation stone for the independent judiciary in the American tripartite system of government. In a system designed to protect against tyranny of both the majority and the minority, the clause is a constitutional contract with those men and women who serve in the judiciary—a contract that can be rescinded only through an act of impeachment.

In recent years, the Good Behavior Clause has been the subject of considerable academic debate due to its close association with the impeachment standard in Article II. When the clause was drafted, however, there was little discussion of its meaning. The Good Behavior Clause affirmed the life-tenure guarantee of federal judges—a fundamental requirement for the separation-of-powers doctrine that underlies the Constitution.

Although judges in England were given the protection under a good-behavior provision in the 1701 Act of Settlement, colonial judges were given no such guarantee and served at the whim of the Crown. This deficit led to some of the stated grievances in the Declaration of Independence, including the charge that the king "has made Judges dependent on his Will alone, for the tenure of their offices...." Thus, the Good Behavior Clause was an English import, put to a slightly different American use. As Alexander Hamilton explained in The Federalist No. 78:

In a monarchy [the good behavior standard] 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....[I]t is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.

In the records of the Constitutional Convention, it is clear that the Good Behavior Clause was viewed simply as an expression of life tenure as opposed to a distinct standard for removal. The only effort to change this language reflects this understanding. On August 27, 1787, John Dickinson of Delaware moved to add, after the words "good Behaviour," the words "provided that they may be removed by the Executive on the application [by] the Senate and House of Representatives." The Dickinson amendment was voted down by a vote of 7–1. The Dickinson amendment is interesting because it would have effectively created a different standard and system of removal for federal judges. Notably, Gouverneur Morris of Pennsylvania objected that such a change would defeat the intent of creating an independent judiciary. He noted that it would be a "contradiction in terms to say that the Judges hold their offices during good behavior, and yet be removable without a trial." Morris's reference to a "trial" indicates an understanding that such a proceeding is addressed elsewhere in the Constitution. (The debate over the impeachment standard would occur only two weeks later on September 8, 1787.)

This limited exchange hardly answers the question conclusively that good behavior was never intended as a distinct standard for removal. However, it strongly reinforces the view that, had this been the intention of the Framers, a more rigorous debate would have occurred over the language, given the importance of judicial independence to the constitutional scheme.

The meaning of the Good Behavior Clause has periodically been raised in the context of impeachment cases, where it is a natural starting point in any removal effort. In some cases, there is a powerful temptation to look to the Good Behavior Clause as a convenient device to remove a judge who is obnoxious or embarrassing but not necessarily guilty of a "high crime and misdemeanor." Frustration with the latter standard was expressed most famously by Thomas Jefferson when he denounced it as a "bungling way of removing impracticable thing—a mere scarecrow." The Good Behavior Clause serves as a cautionary note for Congress that the intent of the Framers was to protect judicial officers from what James Wilson described in the debates as "every gust of faction which might prevail in the two branches of our [government]." The protection against factional attacks on the judiciary is found in the process and standard for impeachment under Article II.

While comparatively small in number, impeached judges have been removed for a variety of misdeeds. The first judge removed was John Pickering in 1804, whose "free and intemperate use of intoxicating liquors" led to a litany of "high misdemeanors." While Pickering's counsel argued an insanity defense to rebut any intentional misdemeanors, the Senate convicted him. In a more recent case, Judge Alcee Hastings argued that his acquittal on federal charges of conspiracy and bribery should shield him from impeachment in 1989. The House and Senate, however, disagreed. After a formal referral of the case from the Judicial Conference, Hastings was impeached and removed from the bench.

The issue surfaced again during the impeachment and trial of former President William Jefferson Clinton. Some judicial cases clearly established that the alleged criminal conduct by Clinton did fall within the past interpretation given "other high Crimes and Misdemeanors." Though not directly relevant to the charge against an executive officer, it was nonetheless asserted in both the House and the Senate proceedings that the Good Behavior Clause created a lower standard that was neither material nor analogous to the standard governing the removal of a President.

Still, both the language and the weight of historical evidence indicate that the Good Behavior Clause was intended to refer to life tenure rather than to a distinct standard for removal. However, just as the Good Behavior Clause reminds the other branches that the judiciary is truly independent, it also reminds judges that life tenure is not a license for the wanton or the corrupt. It is in this sense both a shield and a sword—an affirmation of judicial independence and a reservation for judicial removal.

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Jonathan Turley
J.B. and Maurice C. Shapiro Professor of Public Interest Law
Director, Environmental Law Advocacy Center
Executive Director, Project for Older Prisoners
The George Washington University Law School