One of the most important improvements on government that was first (in the world) implemented in state constitutions and then in the U.S. Constitution was the separation of judicial powers from executive or legislative powers. James Madison and Alexander Hamilton explained why that separation was crucial to our Constitution and our liberty (again highlighting the vital importance and meaning of the good behavior of judges).
In The Federalist Papers, James Madison (Federalist No. 47) and Alexander Hamilton (Federalist No. 78) invoked and quoted Montesquieu:
Madison: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" is "the very definition of tyranny." The bottom line is that tyranny (an excessive accumulation of power) is dangerous and detrimental regardless of whether one (a monarch), a few (e.g., aristocrats) or many (in a democracy) possess the power of tyrants to oppress others. As Madison emphasized, under our Constitution there is great danger of oppression and tyranny by any faction or political or religious majority (or even a minority).
"In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu." "Montesquieu" emphasized (and the people who wrote and ratified our Constitution believed) "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers."
Hamilton: "I agree" with Montesquieu that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." Maybe "liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments."
Thank you for pulling the curtain back to expose these sham wizards. As Chief Justice Roberts, himself, highlighted (quoting Alexander Hamilton), one of the abuses of power that the people who founded our nation and wrote and ratified our Constitution feared most was “judicial despotism.” Alleyne v. United States, 570 U.S. 99, 127 (2013) ((Roberts, C.J. and Scalia and Kennedy, JJ., dissenting) (quoting The Federalist No. 83 (A. Hamilton). "The Framers of the Constitution" clearly "understood the threat" of "judicial despotism." United States v. Booker, 543 U.S. 220, 238 (2005) (quoting same).
At the very least, Americans should stop saying that federal judges have "life tenure" or "lifetime appointments." It is well worth thinking about the substantive meaning of saying that a person with a particular title and political powers can exercise such powers for life. Historically, two types of people have been so empowered: nobility and clergy. Yet, our Constitution in Article I promptly and prominently outlawed any state or federal "title of Nobility." Our Constitution also was very promptly and prominently amended with the First Amendment to outlaw any "law respecting an establishment of religion."
It's also well worth thinking about how judges have made themselves to look like priests and how they have made lawyers, litigants and citizens see judges very much like priests. Federal judges wearing black robes parade into a part of buildings that often were made to resemble churches or temples. They sit at a structure made to resemble an alter. They do all the foregoing while another government employee orders everyone present to stand. Too often, they merely pretend that what they do is say what the law is. Too often, they pretend that their word (nor our Constitution or federal law) is the law.
Judges (who swore to support our Constitution in every official action) lie about our Constitution by asserting the lie that federal judges have "life tenure." They use and abuse that lie to undermine our Constitution in the minds of Americans about the meaning of our Constitution and the means it gave Americans to hold judges accountable for behaving badly. It is objectively and blatantly false to contend categorically that our Constitution gave any judge "life tenure." It simply did not do so. It is clearly untrue (by any relevant standard) that "during good behaviour" means "for life."
The truth is that judges (and lawyers) abuse the lie about "life tenure" to support the pretense that federal judges cannot be held accountable for bad behavior. Chief Justice Roberts provided a compelling example in Williams-Yulee v. Fla. Bar in 2015. He failed to quote the relevant text of Article III (but he did acknowledge that "Our Founders" authorized federal "judges to hold their offices during good behavior."). Then, he misrepresented the meaning of "during good behavior." He directly misrepresented that "Hamilton believed" in "appointing judges to positions with life tenure," and he cited The Federalist No. 78.
The truth is that Article III and Hamilton repeatedly emphasized "good behavior," not "life," as defining the term of office of federal judges. Hamilton did so in Federalist No. 78, and again in Federalist No. 79, when he directly emphasized the text and a strikingly different view of the purpose of the text of Article III: only federal “judges” who “behave properly, will be secured in their places for life.”
Chief Justice Roberts then correctly identified the issue: “a desire to make judges more accountable to the public." Opposing judicial accountability for bad behavior is exactly the point of judges and lawyers who lie about judges having "life tenure."
Two other discussions among SCOTUS justices highlighted how judges abuse the lie about federal judges having tenure for "life" to further misrepresent that federal judges are “not accountable to the people.”
Just search for the words "life" and "accountable" in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring) and S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) (Roberts, C.J., concurring) (Kagan, Breyer and Sotomayor, dissenting).
In the first concurring opinion, Chief Justice Roberts emphasized his view of federal judges: merely because they are “unelected,” they are "not accountable to the people."
In the second concurring opinion, Chief Justice Roberts reiterated his view of federal "judges being shielded" (from accountability) "by life tenure."
In the last opinion, the dissenters emphasized Chief Justice Roberts' representation that federal judges are "unelected," so they are “not accountable to the people.” They followed that by their own misrepresentation that "[o]ur marble halls are now closed to the public," so "our life tenure forever insulates us from responsibility for our errors."
Contrary to the contention of some judges, judges are accountable to the people in multiple respects. SCOTUS has long held (and federal law (federal rules of procedure) has long required) that judges (at least generally) must account to the people for their judgments in written opinions justifying their judgments. Judicial violations of law can be (and commonly are) appealed by people to higher courts. Judicial misconduct also can be reported to regulatory authorities (and maybe disciplined). Judges also can be prosecuted for criminal violations of rights. Judges also can be publicly criticized for their conduct. The people also can urge members of Congress to impeach, convict and remove judges. It's an obvious lie to say that federal judges are not at all accountable to the people merely because federal judges don't stand for election.
Our Constitution did not give federal judges "life tenure" or ensure that they are not "accountable to the people." Our Constitution requires federal judges to be independent of everything except the legal authority and facts that our Constitution requires or permits them to consider. Article III expressly provided for federal judges to be removed for behavior that is not "good Behaviour." Article II even requires federal judges to be held accountable for particular bad behavior (they "shall be removed from Office on Impeachment for, and Conviction of" any "high Crimes" or high "Misdemeanors," including "Treason" or "Bribery."
Importantly, Article II also states the term of office of the president and vice president: they may hold "Office during the Term of four Years." Impeachment clearly isn't (and cannot logically or legally be) required to enforce any term of office specified in Article II.
Article III includes an analogous provision that is very different from the standard pertaining to impeachment. And it is a fundamental rule of construction of our Constitution that no provision or word may be assumed to be superfluous.
Article III (like Articles I and II) expressly and specifically governs terms of office: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." Impeachment isn't (and cannot logically or legally be) required to enforce any term of office specified in either Article II or Article III. If "during good behaviour" meant "until impeached, convicted and removed," then that's what Article III would have said, would it not? There is no basis in law to assume that "during good behaviour" meant ONLY "until impeached, convicted and removed for high crimes and misdemeanors."
The foregoing (and your discussion) highlights how desperately we need legislation providing for removal of judges for behavior that is not good. The people who wrote and ratified our Constitution thought and spoke a lot about good behavior, and they thought that any purported public servant who abused his position could be removed for behavior that was not good. The most obvious, most essential test of whether behavior by a public servant was good was stated in Article VI: every legislator and "all executive and judicial Officers, both of the United States and of [all] States, shall be bound by Oath or Affirmation, to support this Constitution." Any purported public servant who violates his or her oath of office clearly and irrefutably is guilty of behavior that is not good, regardless of whether such misconduct has been identified by Congress as a high crime or misdemeanor. Wouldn't you agree?
Who decides what is "bad behavior"? Clearly Alito,and Thomas have taken bribes. And as far as I see it, anyone pushed by the federalist society has also. Otherwise they would have been removed, al la Meiers.
Often, we can rely on judges to help ascertain the meaning of text of our Constitution. But we shouldn't trust judges on this issue. An old rule of law is that no man can be a judge in his own case, and too many judges are guilty of behavior that is not good.
Obviously, committing an impeachable offense (a high crime or high misdemeanor) is not good behavior. Moreover, as Article VI emphasized, the People established that the first, foremost and constant duty of every legislator and "all executive and judicial Officers" (state and federal) is "to support" our "Constitution" in everything they do. So that seems to one appropriate standard: good behavior means fulfilling one's oath (promise) to support our Constitution.
The people who wrote and ratified our Constitution expected Congress to answer this kind of question. And in Article I the People "vested in a Congress" the power (and imposed the duty) to "make all laws" that are "necessary and proper" to support our Constitution, i.e., "all Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution in" Congress or "the Government of the United States, or in any Department or Officer thereof” (including in the executive and judicial branches). So Congress should enact legislation establishing what judicial behavior is not good behavior.
Oy, I lost my rambling comment regarding podcasts using "absurdist" humor. My point is that SCOTUS-focused podcasts are by and large extremely educational, and knowledge primes rage here as well as dissent. People who'd choose to spend their time listening to SCOTUS podcasts (as they exist now!) can suss out the wry/absurdist wit that often accompanies the horror show content of their shows. Personally I have learned so much about how SCOTUS works and gotten gobs of context from the Strict Scrutiny podcast, which has given me a much better grasp of their systematic program and the tools they use to obscure it.
Another brilliant and vital contribution.
With love and deepest gratitude for your voice and your passion.
This article is an outstanding service and, yes, call to arms. Deep gratitude.
This is a great article- thank you! But how do we push back? Is there anything we can do?
We have moderated ourselves into a tight, dark corner.
One of the most important improvements on government that was first (in the world) implemented in state constitutions and then in the U.S. Constitution was the separation of judicial powers from executive or legislative powers. James Madison and Alexander Hamilton explained why that separation was crucial to our Constitution and our liberty (again highlighting the vital importance and meaning of the good behavior of judges).
In The Federalist Papers, James Madison (Federalist No. 47) and Alexander Hamilton (Federalist No. 78) invoked and quoted Montesquieu:
Madison: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" is "the very definition of tyranny." The bottom line is that tyranny (an excessive accumulation of power) is dangerous and detrimental regardless of whether one (a monarch), a few (e.g., aristocrats) or many (in a democracy) possess the power of tyrants to oppress others. As Madison emphasized, under our Constitution there is great danger of oppression and tyranny by any faction or political or religious majority (or even a minority).
"In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu." "Montesquieu" emphasized (and the people who wrote and ratified our Constitution believed) "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers."
Hamilton: "I agree" with Montesquieu that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." Maybe "liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments."
Thank you for pulling the curtain back to expose these sham wizards. As Chief Justice Roberts, himself, highlighted (quoting Alexander Hamilton), one of the abuses of power that the people who founded our nation and wrote and ratified our Constitution feared most was “judicial despotism.” Alleyne v. United States, 570 U.S. 99, 127 (2013) ((Roberts, C.J. and Scalia and Kennedy, JJ., dissenting) (quoting The Federalist No. 83 (A. Hamilton). "The Framers of the Constitution" clearly "understood the threat" of "judicial despotism." United States v. Booker, 543 U.S. 220, 238 (2005) (quoting same).
At the very least, Americans should stop saying that federal judges have "life tenure" or "lifetime appointments." It is well worth thinking about the substantive meaning of saying that a person with a particular title and political powers can exercise such powers for life. Historically, two types of people have been so empowered: nobility and clergy. Yet, our Constitution in Article I promptly and prominently outlawed any state or federal "title of Nobility." Our Constitution also was very promptly and prominently amended with the First Amendment to outlaw any "law respecting an establishment of religion."
It's also well worth thinking about how judges have made themselves to look like priests and how they have made lawyers, litigants and citizens see judges very much like priests. Federal judges wearing black robes parade into a part of buildings that often were made to resemble churches or temples. They sit at a structure made to resemble an alter. They do all the foregoing while another government employee orders everyone present to stand. Too often, they merely pretend that what they do is say what the law is. Too often, they pretend that their word (nor our Constitution or federal law) is the law.
Judges (who swore to support our Constitution in every official action) lie about our Constitution by asserting the lie that federal judges have "life tenure." They use and abuse that lie to undermine our Constitution in the minds of Americans about the meaning of our Constitution and the means it gave Americans to hold judges accountable for behaving badly. It is objectively and blatantly false to contend categorically that our Constitution gave any judge "life tenure." It simply did not do so. It is clearly untrue (by any relevant standard) that "during good behaviour" means "for life."
The truth is that judges (and lawyers) abuse the lie about "life tenure" to support the pretense that federal judges cannot be held accountable for bad behavior. Chief Justice Roberts provided a compelling example in Williams-Yulee v. Fla. Bar in 2015. He failed to quote the relevant text of Article III (but he did acknowledge that "Our Founders" authorized federal "judges to hold their offices during good behavior."). Then, he misrepresented the meaning of "during good behavior." He directly misrepresented that "Hamilton believed" in "appointing judges to positions with life tenure," and he cited The Federalist No. 78.
The truth is that Article III and Hamilton repeatedly emphasized "good behavior," not "life," as defining the term of office of federal judges. Hamilton did so in Federalist No. 78, and again in Federalist No. 79, when he directly emphasized the text and a strikingly different view of the purpose of the text of Article III: only federal “judges” who “behave properly, will be secured in their places for life.”
Chief Justice Roberts then correctly identified the issue: “a desire to make judges more accountable to the public." Opposing judicial accountability for bad behavior is exactly the point of judges and lawyers who lie about judges having "life tenure."
Two other discussions among SCOTUS justices highlighted how judges abuse the lie about federal judges having tenure for "life" to further misrepresent that federal judges are “not accountable to the people.”
Just search for the words "life" and "accountable" in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring) and S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) (Roberts, C.J., concurring) (Kagan, Breyer and Sotomayor, dissenting).
In the first concurring opinion, Chief Justice Roberts emphasized his view of federal judges: merely because they are “unelected,” they are "not accountable to the people."
In the second concurring opinion, Chief Justice Roberts reiterated his view of federal "judges being shielded" (from accountability) "by life tenure."
In the last opinion, the dissenters emphasized Chief Justice Roberts' representation that federal judges are "unelected," so they are “not accountable to the people.” They followed that by their own misrepresentation that "[o]ur marble halls are now closed to the public," so "our life tenure forever insulates us from responsibility for our errors."
Contrary to the contention of some judges, judges are accountable to the people in multiple respects. SCOTUS has long held (and federal law (federal rules of procedure) has long required) that judges (at least generally) must account to the people for their judgments in written opinions justifying their judgments. Judicial violations of law can be (and commonly are) appealed by people to higher courts. Judicial misconduct also can be reported to regulatory authorities (and maybe disciplined). Judges also can be prosecuted for criminal violations of rights. Judges also can be publicly criticized for their conduct. The people also can urge members of Congress to impeach, convict and remove judges. It's an obvious lie to say that federal judges are not at all accountable to the people merely because federal judges don't stand for election.
Our Constitution did not give federal judges "life tenure" or ensure that they are not "accountable to the people." Our Constitution requires federal judges to be independent of everything except the legal authority and facts that our Constitution requires or permits them to consider. Article III expressly provided for federal judges to be removed for behavior that is not "good Behaviour." Article II even requires federal judges to be held accountable for particular bad behavior (they "shall be removed from Office on Impeachment for, and Conviction of" any "high Crimes" or high "Misdemeanors," including "Treason" or "Bribery."
Importantly, Article II also states the term of office of the president and vice president: they may hold "Office during the Term of four Years." Impeachment clearly isn't (and cannot logically or legally be) required to enforce any term of office specified in Article II.
Article III includes an analogous provision that is very different from the standard pertaining to impeachment. And it is a fundamental rule of construction of our Constitution that no provision or word may be assumed to be superfluous.
Article III (like Articles I and II) expressly and specifically governs terms of office: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." Impeachment isn't (and cannot logically or legally be) required to enforce any term of office specified in either Article II or Article III. If "during good behaviour" meant "until impeached, convicted and removed," then that's what Article III would have said, would it not? There is no basis in law to assume that "during good behaviour" meant ONLY "until impeached, convicted and removed for high crimes and misdemeanors."
The foregoing (and your discussion) highlights how desperately we need legislation providing for removal of judges for behavior that is not good. The people who wrote and ratified our Constitution thought and spoke a lot about good behavior, and they thought that any purported public servant who abused his position could be removed for behavior that was not good. The most obvious, most essential test of whether behavior by a public servant was good was stated in Article VI: every legislator and "all executive and judicial Officers, both of the United States and of [all] States, shall be bound by Oath or Affirmation, to support this Constitution." Any purported public servant who violates his or her oath of office clearly and irrefutably is guilty of behavior that is not good, regardless of whether such misconduct has been identified by Congress as a high crime or misdemeanor. Wouldn't you agree?
Who decides what is "bad behavior"? Clearly Alito,and Thomas have taken bribes. And as far as I see it, anyone pushed by the federalist society has also. Otherwise they would have been removed, al la Meiers.
Often, we can rely on judges to help ascertain the meaning of text of our Constitution. But we shouldn't trust judges on this issue. An old rule of law is that no man can be a judge in his own case, and too many judges are guilty of behavior that is not good.
Obviously, committing an impeachable offense (a high crime or high misdemeanor) is not good behavior. Moreover, as Article VI emphasized, the People established that the first, foremost and constant duty of every legislator and "all executive and judicial Officers" (state and federal) is "to support" our "Constitution" in everything they do. So that seems to one appropriate standard: good behavior means fulfilling one's oath (promise) to support our Constitution.
The people who wrote and ratified our Constitution expected Congress to answer this kind of question. And in Article I the People "vested in a Congress" the power (and imposed the duty) to "make all laws" that are "necessary and proper" to support our Constitution, i.e., "all Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution in" Congress or "the Government of the United States, or in any Department or Officer thereof” (including in the executive and judicial branches). So Congress should enact legislation establishing what judicial behavior is not good behavior.
Oy, I lost my rambling comment regarding podcasts using "absurdist" humor. My point is that SCOTUS-focused podcasts are by and large extremely educational, and knowledge primes rage here as well as dissent. People who'd choose to spend their time listening to SCOTUS podcasts (as they exist now!) can suss out the wry/absurdist wit that often accompanies the horror show content of their shows. Personally I have learned so much about how SCOTUS works and gotten gobs of context from the Strict Scrutiny podcast, which has given me a much better grasp of their systematic program and the tools they use to obscure it.