Constitution Check: Did the Founders want term limits for Supreme Court Justices?

Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at comments from Mike Huckabee about the Founders’ intentions for a Supreme Court with term limits and what Alexander Hamilton said about the issue.

THE STATEMENT AT ISSUE:

“Prospective presidential nominee Mike Huckabee called Saturday for the imposition of term limits on U.S. Supreme Court justices, saying that the nation’s founders never intended to create lifetime, irrevocable posts. ‘Nobody should be in an unelected position for life,’ the former Arkansas governor said in an interview, expanding on remarks he made during an hour-long speech at the Nixon Presidential Library in Yorba Linda. ‘If the president who appoints them can only serve eight years, the person they appoint should never serve 40. That has never made sense to me; it defies that sense of public service.’ Huckabee said the Federalist Papers, written by Alexander Hamilton, James Madison and John Jay, supported his view that the nation’s founders came close to imposing judicial term limits in the Constitution; they never could have imagined people would want to serve in government for decades, he said.”

– Story in The Los Angeles Times, on March 28, describing an interview with the ex-governor, who is expected to announce soon that he will again seek the presidency.

WE CHECKED THE CONSTITUTION, AND…

Much of the American Constitution endures, after more than two centuries, in its original form, and that is a testament to the wisdom of the founding generation that put it together. But it is sometimes true that a commentator here and there will treat the original Constitution as if it said something different from what it actually says, something more agreeable to that person.

Politicians on the stump may indulge themselves in that kind of revisionism because it better suits an aspiration they may have for America. One perhaps can expect, as America moves more deeply into the next round of presidential politics, that the Constitution will take on new meanings on the stump. Given that it is so easy to disprove such rewriting, it is surprising that even politicians eager for votes would allow themselves to be shown to be wrong.   That, however, seems not to be much of a deterrent.

One constitutional fantasy is that the Supreme Court should not really have members who can serve for their lifetimes, a choice left entirely to them personally so long as they behave themselves and do not give reasons to seek to unseat them involuntarily.

The opening words of the Constitution’s Article III, describing the judiciary that the original document created at the national level, reads this way (with emphasis added): “The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior…”

The phrase “good behavior” obviously implies that there is no limit on how long a Justice may serve, once approved for serving on the court. That implication is supported by the impeachment provision of the Constitution, contained in Article II.   Just as the president and vice president may be removed from office by impeachment, so, too, can federal judges, including Justices of the Supreme Court. But that can only happen if they are convicted of “treason, bribery, or other high crimes and misdemeanors.” Those, surely, are words that describe the opposite of “good behavior” for a judge, so they give meaning to the question of Justices’ right to continue in office indefinitely.

If former Arkansas Governor Mike Huckabee has been quoted accurately by the Los Angeles Times, he has a perception of what the founding generation wanted regarding judicial tenure that seems to run counter to Article III and to the history of the founding years.   There is nothing in Article III, or in the impeachment provision, that supports the notion that “the nation’s founders never intended to create lifetime, irrevocable posts” for Supreme Court Justices, or for other federal judges.

That part of Article III has never been revised, and the prospects that it will be – say, for example, by an amendment to impose term limits – seem quite remote if not non-existent.

But Huckabee’s quarrel is not only with constitutional language, but with what that very influential document of the founding era – the Federalist Papers – has to say on the subject of the terms of service on the Supreme Court.

The most authoritative and thorough Federalist Paper on “the judicial department” is No. 78, published on May 28, 1788.   Like all other papers, it was published under the pen name “Publius,” but this one was actually written by Alexander Hamilton.   To suggest, as Gov. Huckabee does, that Hamilton and the other authors of the Federalist “came close to imposing judicial term limits” does not take account of Paper No. 78.

Here is some of what Hamilton wrote there, describing the sense of the Philadelphia Convention that drafted the original Constitution:

“According to the plan of the convention, all judges who may be appointed by the United Sttews are to hold their offices during good behavior; which is conformable to the most approved of the state constittions….Its propriety having been drawn into question by the adversaries of that plan is no light symptom of the rage for objection which disorders their imaginations and judgments. The standard of good behavior 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….It is the best expedient which can be devised in any government to secure a steady, upright and impartial administrations of the laws….This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

There is in those sentiments not the slightest hint that Hamilton, or Madison or Jay, “came close to imposing judicial term limits in the Constitution” or that “they never could have imagined people would want to serve in government for decades.”

The Huckabee musings on this subject run into another logical barrier in the structure of the Constitution.. He was quoted as saying that, if presidents who appoint members of the court can only serve eight years, the person they name should not serve 40 years. But, until the Twenty-Second Amendment was written into the Constitution in 1951, there were no term limits for those who served as president. So, for 163 years after Article III was put into the Constitution, there was no potential inconsistency between the tenure of presidents and of Supreme Court Justices.

Franklin Roosevelt, the last president not affected by the Twenty-Second Amendment, served for three full terms, plus 83 days into a fourth term. One of the eight Justices he named to the Court set the record for the longest service on the court: William O. Douglas, who served more than 36 years.   While the nation turned out to be uncomfortable with a presidential term of the length of Franklin Roosevelt’s, there has been no serious effort to curb the service of the Justices.   And that seems to reflect the founders’ true wishes.