The Greatest Scourge: “Good Behaviour” by Federal Judges — Its Historical Meaning Revealed.

(Alexander Hamilton, James Madison, & English Practice).*

*𝚄𝚙𝚍𝚊𝚝𝚎𝚍 𝟸𝟶𝟸𝟺: 𝙹.𝙴.𝙸. 𝙿𝚛𝚎𝚜𝚜.
𝙱𝚢 𝚁. 𝙹. 𝙱𝚛𝚘𝚗𝚗𝚎𝚛 (𝙳𝚘𝚌𝚝𝚘𝚛 𝚘𝚏 𝙻𝚊𝚠, 𝙷𝚊𝚛𝚟𝚊𝚛𝚍 𝚄𝚗𝚒𝚟.).

In the English legal tradition there were two categories of judicial appointments, as shown below.

The “good behavior” model is one categorical-style of tenure. To say that good behavior tenure is the same concept as ‘life tenure’ is not perfectly accurate for certain forms of misconduct are always valid grounds for removal of federal judicial officers (e.g., treason, bribery, high crimes or misdemeanors, and misbehavior).

The alternative style of tenure to the good behavior model is the “during pleasure” system. The former style calls for a legally competent reason to be given in order to remove a public official from serving in the government while the latter does not — in fact, it requires no reason.

“All offices the tenure of which is not fixed by the Constitution or limited by law must be held either during good behavior or (which is the same thing in contemplation of law) during the life of the incumbent, or must be held at the will and discretion of some department of the government, and subject to removal at pleasure.”

— Ex Parte Matter of Hennen, 38 U. S. 230, 259 (1839) (noting that tenure for life always is limited by a good behavior requirement).

Service at pleasure simply means the office holder is a kind of ‘at-will’ employee and may be terminated without reason. That type of service in government also still exists: For example, a U.S. president may terminate certain aides, advisers, and assistants — a reason generally need not be given. The practical necessities of that type of government employment should be clear where it is put to use. For instance, the commander in chief cannot be expected to repeatedly be drawn into expulsion or impeachment proceedings whenever the services of a personal assistant are no longer needed or desired. To do differently would consistently hinder the executive and create security risks and inefficiencies for the nation through constant petty-distractions wholly incompatible with carrying out the duties of high office.

“[The president] must place in each member of his official family, and his chief executive subordinates, implicit faith. The moment that he loses confidence in the intelligence, ability, judgment or loyalty of anyone of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and coordination in executive administration essential to effective action.”

— Myers v. United States, 272 U. S. 52 134 (1926).

Removal of subordinates by the commander in chief is its own highly technical area of law and will not fully be unpacked here. Nevertheless, for the curious reader, as a starting point, the following materials should be reviewed and weighed: 1 Annals of Congress at 468 (Boudinot) 499 (Madison) 522 (Sedgwick) (“Shall a man under these circumstances be saddled upon the President who has been appointed for no other purpose but to aid the President in performing certain duties?”) and U.S. Const. Art. II, § 3 (duty to faithfully execute law and implicit power to remove under-performing subordinates); see 1 Ops. Atty. Gen. 624 (1823); cf. John Murdoch Dawley, “The Governor’s Constitutional Powers of Appointment and Removal” Minnesota Law Review 1627 (1938) (discussing state tenures of office and removals).

None-the-less, our focus here is the good behavior model of tenure of office for members of the federal judiciary. It seldom has correctly been explained in legal scholarship and even by the federal courts. Here we seek to change that.

The Framers chose the “good Behavior” model for federal judges — It is a call to constitutional ethics.

In American constitutional discussions, there generally are two competing ways of telling the story of the U.S. Constitution’s “good Behavior” Clause:

1. It is a form of protection for judges — that is, federal judges cannot be removed unless there is some affirmative showing of misbehavior.
2. It is a call for judicial ethics and an enforcement mechanism (one that supplements ordinary impeachments). It should be noted that the impeachment power and good behavior requirement appear in separate parts of the Constitution. [Cf. United States v. Williams, 553 U. S. 285, 294 (2008) (a legal term is “given more precise content by the neighboring words with which it is associated.”); Yates v. United States, 574 U. S. 528 (2015) (“The words immediately surrounding … cabin the contextual meaning of that [ambiguous] term [when decoding legislative intent].”).]

As to whether these two prongs of the “good Behaviour” Clause exist, I ask readers to assume they exist for the time being until they later are laid bare by the historical record. Let us begin with a hypothetical.

• A Hypothetical.

The first prong is in certain ways the same as the second requirement, with the difference being that the first principally is intended to protect judges and the second principally is intended to protect the general public from judges. Nevertheless, they are cut from similar constitutional ideas.

This is what I mean: Let us assume a certain federal judicial officer (“the disciplined-judge”) is removed from the bench on allegations that her lunch-time hobby was juggling watermelons, but the record of imposed discipline lacks anything showing close adhesion to facts; and it also lacks admissible evidence in support of the allegations; and it makes no effort whatsoever to explain how watermelon-juggling amounts to treason, bribery, high crimes or breach of the requirement of good behaviour. And let us further suppose that the disciplined-judge sought to cross-examine the complainant to show that the complainant was recruited by a tycoon who did not like the disciplined-judge’s prior rulings on taxation and that there was also a quiet-conspiracy among the disciplining authorities to usurp the disciplined-judge’s office for themselves because it provided beautiful panoramic views of the city. These are the facts of our hypothetical.

What might we expect the disciplined judge to state under this type of procedural history?

Surely the initial protest might be something like, ‘What the heck is going on?’ And that might result in an additional rebuke or some other sanction if the true purpose of the discipline is retaliation.

Once the dust settles — and the protest is properly framed — the disciplined-judge might correctly be expected to argue that a plantation-like system of justice, wholly incongruous with constitutional norms of ethics, procedures and substantive provisions in the Bill of Rights, unfairly divested her of judicial tenure. (See § 4, infra, on “Great Principles of U.S. Constitutional Law” for an explanation as to the source and character of these principles.) The astute should recognize that the second prong of the Constitution’s ‘good behaviour’ requirement was also expected to protect the public from the same sorts of impropriety that our hypothetical ‘disciplined-judge’ was subjected to. In other words, the second element of good behaviour seeks to protect against judicial deviations from the regular administration of justice.

It should be noted that Justice Samuel Chase — the only Supreme Court Justice to ever be impeached (though not convicted) — was impeached for precisely this reason: i.e., For introducing unfairness into proceedings. Chase was reported to have something of a Jekyll and Hyde type of personality — when he presided over a circuit court (essentially a lower federal court), he had a reputation for unfairness, but when on the full panel of the U.S. Supreme Court hearing appeals, he was highly-regarded for his opinions on constitutional ethics! See, e.g., Calder v. Bull, 3 U. S. 386, 388 (1798) (Chase, J.) (“There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse…[such as] a law that makes a man a judge in his own cause….” Also denouncing ex post facto laws.) . Nevertheless, we must understand that the good behaviour requirement seeks to protect against judicial deviations from fairly administered justice.

I have seen judicial-disbelievers instantaneously become the constitutionally-devout when the shoe is on the other foot; as it is in rare instances when disciplining authorities depart the Constitution’s lanes in unfairly treating judges accused of misconduct or bench-crimes. It is a rare occurrence — because when endemic misbehavior infects judicial departments the impulse is for the judiciary’s membership and its staff to stay quiet and benefit from the state of things — but judges on occasion are subjected to unfair tactics too. Courts often rely on cronyism — a second-layer of protection the general public lacks. So, we must recognize the insidious hypocrisy of nullifying the good behavior requirement to protect the public. Unfortunately, members of the general public routinely are dragged across the coals of impropriety on a regular basis — without oversight — which is the root of the crisis created by the courts. Self-dealing erodes the cement that binds the nation together.

Before we move to laying bare the historical record concerning the two prongs of the U.S. Constitution’s “good Behaviour” requirement, an explanatory note is required about common law — that is: What is it? and What is its significance to discovering the meaning of the Constitution’s requirement of good judicial behavior?

• A Note About Constitutional Interpretation And Common Law.

There is, of course, a third way of understanding the Constitution’s good behavior provision, and that is to pretend the “good Behavior” Clause means nothing. But that style of interpretation is inconsistent with a long line of controlling U.S. Supreme Court precedents. [See Marbury v. Madison, 5 U. S. 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect….”); Holmes v. Jennison, 39 U. S. 540, 571 (1840) (“No word in the instrument ... can be rejected as superfluous or unmeaning.”).] Thus, everything in the Constitution means something. The Framers labored with great anxiety over the document’s text so we cannot concern ourselves with unreasonable or indefensible ideas: “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation…. “ Jarrolt v. Moberly, 103 U. S. 580, 586 (1880).

Where terms of art had meaning at English common law or in the early traditions of the nation, they generally are presumed to have been used in that sense unless the legal term was modified:

“[T]he court must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors . . . .”

— Tumey v. Ohio, 273 U. S. 510, 523 (1927) (emphasis).

Thus, we will look to early historical records like the Federalist essays to illuminate the correct path. For a discussion of what constitutes ‘common law’ and its relevance to American constitutional law kindly see, The Basic Structure of English Justice and Common Law: An Introduction, R. J. Bronner (2024) (includes U.S. Supreme Court explications of the relevance of common law to the American legal system).

For an example of the deliberate alteration of English common law by the framers of the U.S. Constitution, the impeachment power presents an exemplary case study: In English parliamentary practice a conviction upon impeachment carried a criminal penalty (including capital punishment) and under U.S. law it merely is a removal and disqualification type of power. See U.S. Const. Art. II, § 4 (consequence of conviction: “shall be removed from Office”); cf. Bills of Attainder in English Law: A Concise Modern Summary, R. J. Bronner (1999) (highlighting differences between English and American practice).

The Federalist Papers, a collection of 85 essays, were written to promote the ratification of the U.S. Constitution. Unfortunately these essays have greatly been misused by those seeking to shield officers of the judicial branch from responsible ethics oversight. Naturally, those wishing to immunize judicial officers from meaningful oversight have done so under the guise of reference to historical records. So, here we try to set the historical record straight.

Since at least the time of Judge Wm. Blackstone — pursuant to maxims of common law (see e.g., ‘judicis est jus dicere, non-dare’) — courts have on occasion informed us that it is the responsibility of judicial departments to decide what the law is, to apply it, but not to create law. They have done so, purportedly, to define duties and restrictions concerning proper behavior by judges.

The issue of ‘making’ law or simply ‘discovering’ and declaring existing law is one that has been debated for generations. Its modern formulation is the call against what is referred to as ‘judicial activism’ — it is the idea that there must be restrictions on the role of judges, so that judges do not resort to personal prejudices and to simultaneously compel respect for separation of power principles.

Whatever the merits of the long-running debate concerning ‘judicial activism’ and ‘judicial restraint,’ surely law must be discoverable in some form. How cruel it would be to impose legal requirements upon the public that have no discoverable meanings and to use generations of trickery to deprive fellow citizens of life, liberty, and property interests! It would amount to one stylistic form of what the framers called tyranny. “Perfect clarity and precise guidance have never been required [in the text of law],” Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989), but an application of law “fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U. S. 285 (2008) (citing Hill v. Colorado, 530 U. S. 703, 732 (2000). Of course, the drafters of our Constitution utilized broad language to allow its core principles room to adapt to changing circumstances. “The genius of our Constitution,” Justice Brennan once observed, “rests in the adaptability of its great principles to cope with current problems and present needs.” The Constitution is not a statute, but it does share some interpretive methods with statutory construction. It is not far-fetched to suggest the proximity of words to a certain Clause is one of these shared forms. Nevertheless, the words of the Constitution largely are purpose-driven provisions. That is why judicial officers are saddled with a supplemental good behavior requirement that traditionally has stressed the importance of intelligence, ability, judgment and loyalty to the Constitution’s provisions. Indeed, judges are singled-out for special treatment in at least four distinct provisions of the Constitution: the impeachment power, the good behavior provision, twice in Section 3 of the Fourteenth Amendment, and state judges are singled-out in the Supremacy Clause by name. It would seem that real adherence to the oath to support the Constitution is a repetitive theme and demanded of judges for reasons the drafters of the Constitution found profoundly important. Why else return to the issue so many times?

Stated differently, it must be beyond debate that standard judicial conduct is an art-form reliant on investigation and the research of traditions, rules, legal history, reasonable source materials, and so forth: That is, discovering law must be a part of genuine judicial procedures. Why else have a written Constitution? Surely investigation of the meaning of the actual text must be the starting baseline!

Nevertheless, the obstacles classically facing the “good Behaviour” Clause of the U.S. Constitution commonly arrive in the form of judges not wanting to ‘discover’ what the framers of the Constitution, early American courts, or researchers have found about the requirement of good behavior (or its related concepts judicial misbehavior and judicial misfeasance). That is, they have employed the ‘adaptability’ of the Constitution for their own needs — not the people’s. They have an interest in the cause — it impacts their pocket-books. Along with not wanting to ‘discover’ items from the historical record, judges commonly fail to make the barest attempt to cite to or explain historical materials when called to attention. Even the character ‘Squeeler,’ from Orwell’s farmous novel, ANIMAL FARM,made some attempt to address the concerns of the other animals!

Squealer explains.

Surely, such a form of ‘judicial restraint’ is in earnest a form of ‘judicial activism’ in disguise — the self-dealing element (‘that no man shall be a judge in his own cause’) likewise turns on its head the precept that we are to adhere to governance by law and not by means of arbitrary or kingly-preferences afforded to privileged men and women with judicial tenures.

The differences in approaches are not minor: One stylistic approach amounts to a lords-and-peasants system — the type early Americans rebuked the king of England for — and the other is a bona fide constitutional republic that respects the structural necessities of good democratic order and transparency supposedly and jealously protected by the First, Fifth and Fourteenth Amendments.

We now look to what historical sources state about the good behavior requirement irrespective of the long-running project to render the Clause an impotent provision of law — a project that can only visit calamity on the nation if left uncorrected.

§ 1. The Purpose of The Good Behavior Clause.

❝ 𝕋ℍ𝔼 𝔽𝔼𝔻𝔼ℝ𝔸𝕃𝕀𝕊𝕋 ℙ𝔸ℙ𝔼ℝ𝕊 ❞

* See the Restatement directly below.

“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. [ ✤ 1-a ] In a monarchy it is an excellent barrier to the despotism of the prince; [ ◈1-b ] in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. [➽ 2 ] And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”

— Federalist №78 (Hamilton).

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* 𝐀 𝐒𝐈𝐌𝐏𝐋𝐈𝐅𝐈𝐄𝐃 𝐑𝐄𝐒𝐓𝐀𝐓𝐄𝐌𝐄𝐍𝐓 of 𝐅𝐞𝐝𝐞𝐫𝐚𝐥𝐢𝐬𝐭 №𝟕𝟖:

[ ✤ 1-a ] Some misconduct must be shown to prevent arbitrary removal of judges. [Note: The king of England would sometimes get rid of judges he did not like without resort to judicial procedure: In England during the 1700s some judges were appointed “during good behaviour” (a showing of misconduct was required for disqualification from office) while others were at ‘the king’s pleasure’ and could be removed whenever the king desired (no showing of misconduct was required)].

[ ◈1-b ] The U.S. Congress must not act like the king.

[ ➽ 2 ] The good behavior requirement is to “secure steady, upright, and impartial” judicial behavior.

─────────────────────────────────»

§ 2. Good Behavior is Two Concepts.

According to Federalist №78 the “good Behavior” requirement contains two co-equal ideas:

(1) It is a form of protection for judges: That is, some proof of misconduct must be shown without resort to purely arbitrary revocation of tenure; and

(2) “Good Behaviour” is an independent requirement that demands adherence to judicial ethics (a judge with bad behavior certainly loses the right to life tenure); and misbehavior is defined as the opposite of “steady, upright, and impartial.”

Both of these requirements appear on the face of Federalist №78, but politically-charged commentators frequently seek to suggest that the good behavior requirement is only about one of the two steps. Text and history, however, show it is about both.

Early state cases further note that the requirement of good behavior, first and foremost, is to protect the people’s body of liberties from lawlessly being sported away through any improper stylistic means: The focus is on preventing distortions to impartial justice perpetrated by organized crime, powerful private monied interests, and arbitrary governmental retaliation. That is, the prohibition of misbehavior is to control ‘the sporting away’ of individual liberties. The 1833 North Carolina opinion shown below makes precisely these points:

“Some offices can, under the [North Carolina] Constitution, be granted or conferred for no other term but that of good behavior. Such is the provision respecting the office of a Judge and Justice of the Peace. Certainly that is not introduced solely for the benefit of the persons holding those offices, but upon the great public consideration, that he who is to decide controversies between the powerful and the poor, and especially between the government and an individual, should be independent, in the tenure of his office, of all control and influence, which might impair his impartiality — whether such control be essayed through the frowns of a bad man, or through the adultation [adulation] of an artful one, or such influence be produced by the threats of the government to visit nonconformity to their will, by depriving him of office, or rendering it no longer a means of livelihood. For these reasons the Constitution has fixed the tenure of the judicial office to be during good behavior. The people have said, that the liberty and safety of the citizen required that it should not be held upon any other tenure.”

— Hoke v. Henderson, 15 N.C. 1, 18–19 (N.C. 1833).

(a) Alexander Hamilton Provides the Closest Account of a Consensus View From the Constitutional Convention Available.

Hamilton also makes clear that his understanding was derived from the constitutional “convention.” That is as reasonably reliable historical evidence of the Framer’s collective-mindset as one might hope for. (See Federalist №78, stating: “According to the plan of the convention ….”) In fact, Hamilton calls the two-step model of good judicial behavior the Framer’s “plan.” That small detail is important: Hamilton is not sharing his personal theory; he is reporting the general consensus view of a law-making body, so his words in this particular passage carry some additional weight.

§ 3. The Structure of the Constitution Provides Clues.

The idea of checks-and-balances is deeply rooted in our constitutional design. In essence what Hamilton states is that a showing of bad behavior is required to cause a forfeiture of tenure of office, and that principle acts as a type of checks-and-balances system. In fact there exists strong evidence that this was the Framer’s consensus view, as we will later see.

James Madison.

James Madison also makes an important point in Federalist №47 — his point is not only about separation of powers (i.e., the division of authority among the executive, the Congress, and the courts). What Madison is also stating is that when any class of people, or a special interest group, acting as the government (1) Makes rules; (2) interprets rules; and (3) selectively chooses to execute (or to not execute) its own rules, it becomes “the very definition of tyranny.”

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

— Federalist №47 (Madison).

This is the very problem the federal courts are facing today with respect to standards of ethics: They create, interpret, and choose whether to enforce their own standards — it is not difficult to see how that leads to grand misuses of official authority. The fox guards the henhouse of rights and repeatedly assures the general public he is doing magnificent work while hindering meaningful public access to, and scrutiny of, the henhouse. The cottage industry that supports the proliferation of endemic corruption in the courts has caused many state judiciaries to follow suit: What works for the fox is often copied by the coyote. It is an astonishing catastrophe given that the Constitution —that is, the document itself — does not trust state judiciaries. There never can be embarrassment in pointing it out by those who genuinely seek to adhere to the solemn undertaking to support the Constitution of the United States:

“The Constitution has presumed (whether rightly or wrongly we do not inquire) that State attachments, State prejudices, State jealousies, and State interests might sometimes obstruct or control, or be supposed to obstruct or control, the regular administration of justice.”

— Martin v. Hunter’s Lessee, 14 U. S. 304, 347 (1816) (Story, J.) (emphasis); see also U.S. Const. Article VI, Clause 2 (“… Judges in every State shall be bound ….”) (emphasis); see also Mugler v. Kansas, 123 U. S. 623, 661 (1887) (“the courts must obey the Constitution”).

Let us be clear: Nothing was of greater importance to the framers of our Constitution as the unstained integrity of the courts or the qualifications of its superintendents who they bound by oath to support and protect the people’s body of liberties. [See also, R.J. Bronner, The Right to Petition (1995–2023).]

To restate the matter, the Constitution’s power of judicial review was not some gift to a privileged class of persons or blocks of special interest groups: “The Constitution of the United States was designed for the common and equal benefit of all the people of the United States.” Martin v. Hunter’s Lessee, 14 U. S. 304, 348 (1816) (Story, J.) (emphasis). On occasion, when I point this out to academics they are surprised that this understanding long-predates ratification of the Fourteenth Amendment. Distrust of state judicial power was a core founding principle of the nation and the U.S. Constitution. Insurrection against this idea started from the founding of the nation — the American civil war was merely the result; and today the problem continues by means of salting the courts with judicial candidates who hold indefensible ‘state’s rights’ views and impersonate ‘originalism’ in the protective shadows of faux ethics enforcement systems.

§ 4. According to Federalist №78, what are the standards of ethics that are required?

We know what the term “impartial” means because there are U.S. Supreme Court cases on that precise subject. See, e.g., Offutt v. United States, 348 U. S. 11, 14 (1954) (To perform its high function “justice must satisfy the appearance of justice….”); In re Murchison, 349 U. S. 133, 136 (1955). (“No man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.”).

“Upright” generally means honest or honorable — honest is the clearer definition, but honorable may mean something too.

But what is “steady”? The word “steady” generally means regular, even, or continuous, and those terms would also have to be defined. Violating fair procedures or even-handed justice would certainly be irregular and uneven, so we can include those concepts. Adherence to precedent (stare decisis) promotes the evenhanded, predictable, and consistent development of legal principles, enables fair reliance on judicial decisions, and contributes to the integrity of the legal process. That is a form of “steadiness,” but if prior decisions are unworkable or are badly reasoned (e.g. ‘separate-but-equal’) there must be room for change. The idea is to isolate and carry-forward the “great” principles of law. What are “great” principles. Here are four concise examples:

• Let us restate the above rules: (1) Justice delayed is justice denied; (2) The law favors transparency; (3) The law favors equality; and (4) sham dispositions result by ignoring settled rules of evidence. (N.B. Many constitutional lawyers do not know the last point is part of the fabric of American constitutionalism). These are examples — there are many more.

We now have a reasonable minimum baseline for “good Behaviour.”

The “great principles of law,” above, are from a document titled “The Memorandum of Law” where I seek to chronicle the essential tenets of real law and honorable exercises of judicial power — one would have hoped the U.S. Supreme Court would have done the same.

So, we have resolved that a federal judge must:

(1) Render Impartial Justice;

(2) Be Honest;

(3) Adhere to Law; Afford Fair Procedures; and Dispense Evenhanded Justice.

(a) The Judiciary Act of 1789.

The Judiciary Act of 1789 lends support to my thesis: It specifically required judges to “do equal right to the poor and to the rich” and “faithfully and impartially … perform … duties.” The oath of 1789 was drafted as a pledge to ethics. If a judicial applicant refused that oath in 1789, they were sent off to look for private work: that is, they were not qualified. Those requirements were real (substantive) and not ceremonial. Let us restate the point once again: The Congress had legal authority to prescribe rules of ethics from day-one. Congress created the judiciary and embedded two ethics rules in the oath (even though primitively stated) while drafts of the Bill of Rights were being shopped to States for ratification. Those threadbare rules of ethics are also standards we now principally associate with the requirements of the First, Fifth, and Fourteenth Amendments.

§ 5. Is “good Behaviour” part of the impeachment process or is it a separate and stand-alone process?

We will return to this question near the end, but it is important to note the following at present:

1. In England good behavior hearings for judges were separate from impeachment — the good behavior rule was borrowed from England.
2. Alexander Hamilton also informs us that the idea also derives from good behavior requirements found in state constitutions that served as a model for the U.S. Constitution:

“According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions ….”

— Federalist №78 (Hamilton).

In the notes of the constitutional convention, while discussing how long a U.S. president should be able to hold office, Madison suggested “7 years” or “during good behavior” — ultimately both proposals were rejected and the president was made subject to removal only for “treason, bribery, or high crimes and misdemeanors.”

“Wilson: for 3 Yrs and no exclusion or rotation —

Madison: 7 years and an exclusion for ever after — or during good behavior”

— The Records of the Federal Convention of 1787, vol. 1. Yale University Press (1911) (at June 01, 1787).

So, we learned something: Good behavior was a less-demanding standard for removing an office-holder; the framers also felt it should be more difficult to remove a president and thus exempted presidents from the standard.

(a) Colonial law demanded good behavior from judges.

As Hamilton points out, colonial common law practice and state constitutions demanded good behavior from judges. For example, the 1780 Constitution of Massachusetts (excerpted below for convenience) mentions the good behavior requirement twice in relation to judges and places other ethical constraints on judicial officers. The structure of the document conveys the message that government officials (1) must remain accountable to the people, (2) no class of public officials should be allowed to become a class of “oppressors,” (3) judges must not be biased, bribed, or swayed by extrinsic inducements (e.g. money, gifts, etc.), and (4) legal rights must have real-and-ready remedies.

The 1780 Constitution of Massachusetts is not a document that calls for hollow obligations from judicial officers. It is important to observe specific sections and its overall structure: Identifying the structural necessities of a genuinely fair legal system must be a part of constitutional theory (the founders and framers certainly used that method).

It should also be noted that the Constitution’s “good Behaviour” Clause draws from the writings of John Adams (the Massachusetts’ model, in the State Constitution above, is also built upon the Adams model). The concept is not a narrow one. For example, failure to render impartial justice and undisclosed benefactors may fairly be said to fall within Adams’ idea of judicial misbehavior.

It must also be noted that in 1780 Massachusetts had a population of 270,000 people. That is, the process Adams refers to would have permitted a great deal more public participation than modern impeachments do. Adams notion of ethics oversight was much closer to an ordinary trial than the grand affairs modern impeachments have become.

§ 6. The First Congress Discusses Good Behaviour.

James Madison was of the view that an officer could be removed by means other than impeachment, he was not certain if that applied to judges, but he indicated it would be correct for the U.S. Congress to decide the question.

(a) Is the Congress permitted to legislate what ‘good behavior’ means and how it is enforced?

Congress is permitted to legislate what good behavior means and how it is enforced, but must also navigate separation of powers principles.

In addition to the good behavior requirement imposed on federal judges, the Congress can rely on the exceptions and regulations provision and the ‘necessary-and-proper’ power:

“[T]he Supreme Court shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.”).

— U.S. Const. art. III, § 2, cl. 2 (emphasis).

“The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution …Powers vested by this Constitution … or in any Department or Officer thereof.”

— U.S. Const. art. I, § 8 (emphasis).

Congressional records show an attempt to legislate on the subject:

§ 7. The U.S. Supreme Court Stated that, ‘Impeachment Cannot Be the Only Avenue for Dealing with Bad Judges.’

• In 1970, the U.S. Supreme Court Noted that Implied Powers Protect the Ethical Administration of Justice.

In regards to the need for the prompt, efficient, and fair, administration of justice and the need to monitor and supervise cases or to reduce or eliminate dilatory practices, delays, and unnecessary costs, the U.S. Supreme Court held that,

“[I]nformal [and] unpublished rules” [that are] “reasonable, proper, and necessary rules, [including] the need for enforcement cannot reasonably be doubted.”

– Chandler, U.S. District Judge v. Judicial Council of the Tenth Circuit, 398 U.S. 74 (1970).

The Supreme Court also held that when a judge uses gimmicks or improper tactics that cause impediments to the administration of justice, impeachment cannot be the only tool for solving the problem:

“[I]f one judge in any system refuses to abide by such reasonable procedures it can hardly be that the extraordinary machinery of impeachment is the only recourse.” Id.

To be fair, the U.S. Supreme Court is speaking to the implied powers of courts — not to the implied powers of Congress. Nevertheless, what the U.S. Supreme Court admits is that the impeachment power is insufficient for dealing with judicial misconduct (much like Madison does); and the high Court notes that federal oversight by judges requires resort to implied powers to control life-tenured judges who depart from the lanes of justice.

§ 8. Good Behaviour and Impeachment: Reprise.

“Disorderly Behaviour.”

The notes of the constitutional convention show that the framers also considered subjecting members of Congress to the “good Behaviour” standard — they ultimately used the words “disorderly Behaviour” as a demand for congressional ethics. Today we call that clause the Expulsion Clause, but it rightfully should be called the “disorderly Behaviour” Clause.

The Senate expelled members fifteen times from its founding until 2023 — all were done under the “disorderly Behaviour” standard.

14 were expelled from the Senate for helping the rebellion.

From Senate expulsions under the “disorderly Behaviour” standard and other pertinent historical evidence we can infer important points:

(1) The “disorderly Behaviour” standard is a kind of “good Behaviour” standard for members of Congress and traditionally was used to terminate the tenure of office — the logical conclusion is that the same must be true for judges under the “good Behaviour” standard.

• The Senate has invoked the disorderly Behaviour standard for the following types of allegations: corruption, self-dealing, Mormonism (strange but true), conflicts of interest and abuse of power. The most prevalent and successful use was immediately after the American Civil War — as shown above.

Of course, nothing prevents the Congress from using the “good Behaviour” standard against judges during impeachments. As we can see below that has been done before: In the 1936 impeachment of Judge Halsted Ritter, “misbehavior” (another way of describing ‘bad behavior’) separately was pleaded from and high crimes and misdemeanors (two of the traditional grounds for impeachment).

Impeachment of Judge Halsted Ritter.

(2) The “disorderly Behaviour” standard used against members of Congress requires a two-thirds supermajority vote but the “good Behaviour” standard does not say what type of vote it requires (that is because the good behavior standard traditionally was litigated in courts or before tribunals).

(3) The Disqualification Clause of the Fourteenth Amendment is not needed to expel anyone from Congress because that was done fourteen times immediately after the American Civil War through the “disorderly Behaviour” Clause. What that tells us is that the disqualification power of the Fourteenth Amendment is a separate power: At English common law it was reserved to the people.

It appears to be the case that the framers intended four distinct methods for terminating the tenure of office — two are legislative. Frankly, it would be incongruent if the other two methods exclusively were also reserved to Congress because it is power Congress does not need. Congress already has power to remove the president, its own members, and judges. That suggests that the Disqualification Clause of the Fourteenth Amendment was a power reserved to the people and to the executive branch. That is not to suggest, however, that the Congress was intended to have no part to play in forfeiture of qualification matters under Section 3 of the Fourteenth Amendment.

§ 9. The Sole Power Clauses.

Nowhere in the U.S. Constitution does it state that impeachment is the exclusive remedy for stripping bad judges of their judicial duties. In dicta, the Supreme Court has suggested that impeachment is the only method: “These courts are presided over by judges appointed for life, subject only to removal by impeachment. ” United States ex rel. Toth v. Quarles, 350 U. S. 11, 16 (1955).

The Constitution has what I term as the ‘Sole Power’ — not soul power — clauses (two of them): They state the House of Representatives “shall have the sole Power of Impeachment” (Article I, section 2) and “the Senate shall have the sole Power to try all Impeachments…. (Article I, section 3).

These clauses define congressional duties during impeachment (and also set forth the two-thirds voting requirement for conviction in the Senate). They do not, however, state that impeachment is the only method for removing judges. As I pointed out earlier, the U.S. Supreme Court previously held that impeachment is not the only way for preventing a misbehaving judge from presiding over the duties of office. See U.S. District Judge Stephen S. Chandler v. Judicial Council of the Tenth Circuit, 398 U. S. 74 (1970) (“[I]f one judge in any system refuses to abide by such reasonable procedures it can hardly be that the extraordinary machinery of impeachment is the only recourse.”). The Supreme Court’s ruling is not mere dicta, the rule was actually used to prevent Judge Chandler from presiding over cases as a trial judge without resorting to impeachment. So, we know the concept of implied powers exist for addressing misbehaving judges and we know “it can hardly be that…impeachment is the only recourse.” Id. Whenever I point this out, legal scholars generally are shocked, but it is the law.

The original Constitution arrived ready-made with the“good Behaviour” Clause. It is not an implied provision — it is a textual clause. The clause clearly is a separate measure from impeachment. Its doctrinal-cousin is the “disorderly Behavior” clause that allows Congress to expel members based on a two-thirds supermajority vote.

Like the “good Behaviour” clause, the “disorderly Behavior” clause makes no mention of the types of misconduct that warrant expulsion from office. Nevertheless, Congress has used the power — much in the same way the British Parliament historically did — to oust members for a wide variety reasons. The British Parliament ousted hundreds of law-makers using a similar method.

Judicial impeachments in America have also utilized the “good Behaviour” standard, but there has never been a stand-alone process separate from congressional impeachment like there has been for “disorderly Behavior” expulsions from Congress. That may owe simply to people being confused about how to implement the “good Behaviour” standard.

Frankly, the Congress would cease to function if it had to pursue impeachment investigations against every federal judge for violations of ethics. That reason has permitted federal courts to turn into dens of banditry without anything resembling a real system of checks-and-balances: Federal judges have become the untouchables. Congress must either choose to pursue its legislative duties or transform into a judicial ethics board of sorts. It cannot do both because it would overwhelm the Congress.

Courts have done their best to render the “good Behaviour” requirement as a toothless one. I believe that the Congress should push back on that effort. A valid argument exists that the courts’ restrictions on the “good Behaviour” requirement ought to be categorized as non-justiciable political questions and repugnant to the Constitution’s call for a system of checks and balances.

§ 10. Commentary on ‘Judicial Independence’ and The Wisdom of Raoul Berger.

Judicial Independence is Misused as a ‘Scarecrow.’ It Must Be Given its Proper Name If the Courts are Ever to Properly Be Reformed.

Independence often is seen as a positive and desirable quality — it is the primary word in the the document we call ‘The Declaration of Independence.’ The independence championed therein was independence against “Despotism” to protect the people’s “unalienable Rights” from governmental abuses of power. So, it should shock us that the concept of independence is being used to subtract the rights and fair procedures owed to the citizens of the nation.

“[The king] has refused his Assent to Laws, the most wholesome and necessary for the public good. * * * 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. [He has] tak[en] away our Charters, [and] abolish[ed] our most valuable Laws …. Our repeated Petitions have been answered only by repeated injury. [This misbehaviour] define[s] a Tyrant, [who] is unfit to be the ruler of a free people.”

— The unanimous Declaration of the thirteen united States of America In Congress, July 4, 1776.

Orwell conveyed it best in outlining the tautological ‘commandments’ in Animal Farm:

“Whatever goes upon four legs, or has wings, is a friend.

Whatever goes upon two legs is an enemy.

All animals are equal.”

— George Orwell, ANIMAL FARM (1945).

There has long been a game in judicial interpretation when it comes to the “good Behaviour” Clause that misuses the word independence: I have only seen it properly called-out once before in the context of the good Behaviour Clause by a Supreme Court justice — Oliver Wendell Holmes Jr. He did it ever so subtly, however, causing his profound observation to evade the gaze of many generations of legal commentators. That example appears towards the end of this article.

Professor Berger makes a similar point — judicial independence is used as a scarecrow to dissuade genuine ethics oversight. The fact that this has been going on since 1979 underscores the trouble the courts face today.

In an article entitled “Chilling Judicial Independence,”’ Chief Judge Irving R. Kaufman sounds the alarm against a pending proposal to facilitate judicial removal of federal judges. This, he trumpets, is “fatally misguided”; it “pose[s] an ominous threat to … judicial independence”; It is a “Trojan Horse,” pitting “Judge against Judge”; [n.3] it “may mask something more sinister”—”a dragnet that would inevitably sweep into its grasp the maverick, the dissenter, the innovator”; [n.4] “the threat of punishment,” that is, of removal, “would project [a] dark … shadow” over the vital potential of dissent.[n.5] Apparently the impeachment process to which he clings does not “project a dark shadow,” presumably because it is quite unlikely to be invoked.

— Raoul Berger, Chilling Judicial Independence: A Scarecrow, 64 Cornell L. Rev. 822 (1979) Available at: http://scholarship.law.cornell.edu/clr/vol64/iss5/2

On the one hand, courts must be able to resist powerful and influential individuals and organizations that attempt to improperly influence judicial decisions to advance improper agendas. And on the other, the lack of a system of meaningful checks-and-balances on the judiciary is a potent risk because judges purporting to resist outside pressures may be doing so to obstruct the public from learning about deviations from ethics and law or to mask ulterior purposes and to enable patterns of judicial misconduct to carry forward.

For ordinary members of the community, it can hardly be that they wield the level of influence or power for perverting the course of justice in most instances. In all but the rarest circumstances (e.g., hardened and unhinged crime gangs or personal acquaintances) the contrary suggestion is almost farcical. Monied special interest groups, connected-political players, and fellow judicial colleagues, however, present an entirely different kind of scenario: Those types of interlopers easily can put a thumb on the scales of justice in ways that may be difficult, if not impossible, to detect.

First, we must start by look at the words and phrasing of the good Behaviour Clause in the Constitution. We must start with the text of law if interpretation is to have a rational and defensible starting point.

“Judges … shall hold their Offices during good Behaviour, and [their] Compensation … shall not be diminished during their Continuance in Office.”

— U.S. Const. Article III, Section 1.

There are two key terms: (1) “good Behaviour” and (2) “Compensation” (that the Constitution places limits on tinkering with).

The term ‘judicial independence’ appears nowhere in the clause: It is, however, evident in the structural design of the Constitution. It is real, but a frequently mischaracterized concept.

I will describe this ‘good form’ of structurally implied judicial independence and its purpose here, but in a deliberately careless manner in the following sentence — to demonstrate how the concept may seduce or hypnotize great thinkers into becoming unwitting accomplices to judicial misbehavior:

• The Constitution vests the three powers — the legislative, the executive, and the judicial — relatively separate powers from the other branches. Without separation there is no independence and without independence the strongest departments of government might encroach upon others or dominate the system of governance altogether. The judiciary lacks the purse (held by Congress) or the sword (held by the Executive) and as such must be afforded a high degree of independence and deference to safeguard one of the structural necessities in a democratic form of government.

Those are seductive words: they tend to turn off critical thinking, but within them elements of truth also exist. Nevertheless, such generalized pronouncements about judicial independence are what have mired the judiciary in corruption.

Judicial independence is a concept capable of being obnoxiously manipulated. Its open design is where the bait-and-switch takes place in the field of constitutional ethics; and there exist no shortage of judicial precedents or treatises helping the duplicity along. Truth be told, the problem has plagued law since medieval courts of common law in England.

A crafty and disingenuous style of interpreting the clause — sadly the prevailing method today — largely ignores the words “good Behaviour” (a call to implement judicial ethics). In fact, it often refuses to see those words at all. Instead it focuses on the protection afforded to judicial “Compensation” (another textual provision). From that premise — or the structural design of the Constitution — it is then argued that the law really intends to safeguard judicial independence by prohibiting tampering with judicial salaries (or allowing oversight functions) as a form of curbing improper leverage over tribunals of justice. And in a certain sense that is correct: Judicial independence is a necessity, but that conclusion firmly and decisively depends on what one means by judicial independence.

Judicial independence is a term that is easy to manipulate — it is an empty vessel capable of being filled with all manner of noxious judicial misconduct. Moreover, any removal of a judge from office for breach of good behavior necessarily involves a reduction in salary (“Compensation”). An officer whose employment has come to end due to misconduct no longer is on the government’s payroll. Here we must clarify what the Constitution actually states: It must be pointed out that what Article III, Section 1 of the Constitution, in earnest, states is that compensation may not be “diminished during [a judge’s] Continuance in Office.” If a judge no longer is “continuing in office” due to some form of proven misbehavior, the talismanic phrases of “compensation” and ‘judicial independence’ must be meaningless and unavailable to any robed priests of injustice seeking to re-enchant the law with noxiously corrupt spells.

The U.S. Constitution does not permit total judicial independence: That is a fact capable of easy proof. If the contrary were true the First Amendment rights of the people and the press would not be centerpieces in our constitutional design. Those rights are intended to question and demand accountability from all departments of government, including judges.

I have seen many instances where upright law professors and judges glaze-over when they hear or read the words “judicial independence.” Something seems to happen to them: Their critical thinking turns off and they fail to consider that the term frequently is used as a stalking-horse for creating a regime of judicial misbehavior and spreading public corruption.

Were Congress to legislate on the issue — something it has the authority to do through its necessary-and-proper power and other constitutional provisions — the problem of judicial overreach immediately would return unless the serpentine ‘wiggle-words’ of “judicial independence” are handled with the utmost precision and care.

One question I quietly have been asked throughout the years is whether Supreme Court precedents exist permitting congressional regulation of the U.S. Supreme Court: They do, as Chief Justice Marshall reminds us below.

The example above is one of many: It is a specialized area of American constitutional law. Justice Marshall makes clear that legislation may “limit [ ] and regulate [ ]” the Supreme Court — in certain ways, but assuredly not in all ways; and he points out that the Constitution itself grants that power. In other words, though it can be done by legislation it is not always a case of ‘congressional usurpation of power.’ Accordingly, what any Congress seeking to enter this field must do well in advance is to understand where regulation ends and improper usurpation of judicial authority begins. Those parameters are clear to me — from the founders and framers designs and the body of English and American colonial history — but they will be murky areas for others to wade through.

Nevertheless, even if the Congress legislates, and appropriately so, the problem certainly will result in a tug-of-war contest with the Supreme Court: There will be a separation-of-powers style of push-back from the current U.S. Supreme Court. The problem of obstructions placed before enforceable standards of judicial ethics is an historically circular-river that we indeed are able to dip our feet in more than once: It is a favorite body of water for Rubicon-crossers — those agents and impersonators of Caesar who quietly hold fast that liberty means tying people to oars.

We must further define the basic problem:

The word independence may be read to mean some form of kingly or absolute power that allows a public official (a judge) to sit above the law so that he or she effectively is placed beyond suspicions, questions, exacting public scrutiny, and can avoid necessary reform measures. Alternatively, the term can mean a judiciary free from decisions handed down due to some form of illegality (e.g., criminal threats or bribery). In fact, a “judicially independent judgement” originally was intended to mean the latter, but even well-intentioned and cerebral judges and scholars have used the term so loosely that it widely has opened the door to rampant misuse. Legal authority for its misuse has proliferated since the 11th century and has created a steeper hill to climb for all who wish to advocate for genuine ethics oversight concerning the courts and to advance needed reforms.

In many respects, the 1780 Massachusetts Constitution handled the issue far better than the U.S. Constitution does despite the U.S. Constitution using the 1780 Massachusetts Constitution as one of its sources of inspiration. That is true even when considering the Massachusetts law’s more colloquial wording.

The Massachusetts charter made the following points clear: A judicial office is never supposed to take on the qualities of a hereditary form of power (Mass. Const. Art. VI); the judicial power is not for promoting a judge’s personal interests or for championing any influential “class of men” — that is, a privileged clique (Mass. Const. Art. VII); and judges are not supposed to create a system where the people have to “purchase” their rights (Mass. Const. Art. XI).

The 1780 Massachusetts charter refers to the above types of misuses of judicial office as “absurd” and “unnatural.” (See § 5 above.) Here it is not the case that ‘less is more’ when it comes to framing law dealing with judicial misconduct — in fact, ‘more is more’ despite the somewhat informal wording of the 1780 Massachusetts Constitution. It uses phrasing one generally does not expect to see in modern law, but that is fine. It works out for the better. It is bluntly-stated and to-the-point: It does not care who it offends. The greater detail one adds to defining the problem sought to be controlled in this arena, the greater clarity the law will enjoy, and it will improve the chances of guaranteeing genuine and proper oversight over the courts. It is for this reason that I stated that the Massachusetts Constitution handled the issue far better than the U.S. Constitution does: It utilized unvarnished candor and listed the precise fears its framers had. The framers of that document could just have written ‘don’t even think about it; we just went through that with the king of England and his minions,’ and in many ways, that is what they did even if the document’s phrasing is a little rough around the edges.

The founders of the American Nation understood that judicial institutions are corruptible. Prior to independence from the crown, the people of the colonies faced judiciaries that were in the pocket of the monarch and faced the sharp edge of a mighty sword: It was a system based on improper ‘sticks’ and improper ‘carrots.’ The king’s influential and powerful sycophants in the colonies also sat in-between the monarch and the people, so that reality also worked to create a multi-layered problem of injustice. Some of the earliest colonial petitions to the king of England where of the ‘Dear king, do you know what your officials actually are doing?’ variety. Blame was not always placed on the monarch in the earliest of complaints, but on his minions in the colonies.

The founders of the Nation sought independence from that type of regime. So, “judicial independence” is a laudable (and original) constitutional goal; and it is an appropriate term if it is used correctly. However, usually it is not. What that term was created to suggest is that forms of illegitimate influence damaging to judicial impartiality are to be interdicted and accounted for by means of a system of ethics and supreme law. Some judges since the time of English common law, however, tend to prefer the ‘kingly judicial rights’ version of ‘judicial independence’ though they are not prone to admit that directly: Their technique is a subtle one. It is an old story: Absolute power corrupts, absolutely.

The founders’ and framers’ true goal was to hold all players in the justice system accountable. That includes powerful-influence groups, lawyers, judicial administrative support staff, and any other persons or players capable of perverting the course of justice. They were not concerned with stylistic forms of corruption so much as they were concerned with the noxious effects of corruption.

To serve law’s high function, of course, direct bribery must not distort the administration of justice, but also improper ‘in-kind’ gifts and ‘grey-area’ inducements must be proscribed and dealt with: For example, if the scales of justice are put out-of-balance by sexual favors, promises or suggestions to help bolster future political or professional ambitions (a form of delayed compensation or bribery in all but name), or even mafia-like criminal threats, the impropriety and negative effects that result will be the same as direct bribery. Preventing all forms of biased decision-making is essential to the structural integrity of any judiciary and needed for fostering public trust in judicial decision-makers. Appearances count. But who decides which ‘appearances’ count? It is the judges whose ‘appearances’ caused problems in the first instance, and that again renders real oversight impotent. And so, we repeatedly have allowed the fox to guard the hen-house of essential rights, privileges and guarantees by acquiescing to uncritical models.

It must be noted here that in Federalist, №79, Alexander Hamilton notes that the hope for guaranteeing judicial compensation was so that judges could resist bribery (and bribery-like activity):

“Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. . . . In the general course of human nature, a power over a man’s subsistence amounts to a power over his will . . . .”

— Federalist, №79 (Hamilton).

Some of the finest and most sincere legal writers in American history — including Joseph Story, John Marshall, and Felix Frankfurter — have been turned into the unwitting accomplices to the slight-of-hand trickery I describe in this section and that now pollutes our courts. There words have been misquoted and mischaracterized by the very machinery of judicial misbehaviour they sought to control.

John Marshall.

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution.” (See John Marshall at the Debates Va. Conv., 1829–1831, at pp. 616 and 619.) Corrupt judiciaries have pounced in making use of phrases like this: It is putty in the hands of the corrupt — allowing it to be molded to suit personal interests.

Great expositors of law — including John Marshall, Felix Frankfurter, Lord Coke, and Joseph Story — have all been bitten by the selfish and resilient viper that refuses to leave the courts of justice and repeatedly has been used as authority for promoting public corruption styled as “judicial independence.”

What Marshall actual intended to convey is that, “[it is] courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this [judicial independence], all the reservations of particular rights or privileges would amount to nothing.” (Id.) That is beyond important: That portion of Marshall’s remark is what usually is not elaborated upon by courts or cited to. What Marshall is actually conveying is that because the other two branches of government (Congress and the executive branch) are more powerful, there must some independence to enable the courts to protect the people’s rights from those other two branches. Nevertheless, somehow we always seem to return to protecting self-dealing judges.

Below we can observe John Marshall in context:

James Madison.

James Madison shared a similar vision in presenting the Bill of Rights to the Congress: Madison’s intent was that the people and the courts — together — would form an alliance that constitutes an “impenetrable bulwark” against misuses of office by the other branches. I previously chronicled the problem in another work. . (See ‘What really happened,’ below.)

From: R.J. Bronner, The Memorandum of Law.

Thomas Jefferson.

In describing the problems faced by the Virginia judiciary — who almost immediately after independence from the crown of England reverted to brazen abuses of authority — Thomas Jefferson wrote the following.

As can be seen: Jefferson complained that Virginia’s judges were “irremovable [except] by their own [colleagues]” and only then due to infirmities of old age (“dotage”). He complained that Virginia’s judges were “a faction … [that] can never be broken up [and that] “hold their count[ies] in chains, forever indissoluble.” So, we know how long endemic judicial corruption has been plaguing America: since the beginning!

The notion that the problem did not spread from the States to the federal branch or become entrenched within the federal judiciary and help enable the behavior, frankly, cuts against intuition.

The game of using the excuse of judicial Independence to create a form of unchecked and absolute judicial power is a part of that effort. At its essence, the argument gingerly tries to lead people to the conclusion that judges need to be above the law and criticism from the community to be able to dispense law in an impartial manner. It is true that judges need to be able to resist criminal influence and powerful pressure groups, but that type of generality masks paramount issues. For example if a group of citizens is dissatisfied with the operation of the courts, and the judge resists their complaints, that hardly amounts to evidence that the judge was “independent” or “impartial,” particularly where the judge (or a colleague in the same clique) passes judgment on citizens’ complaints. It is a fundamental axiom that no judge is to be a judge in his or her own cause (whether directly or by some form of a proxy-relationship). (See Thomas Jefferson’s comment above about Virginia judges who formed a “faction” — a clique — that was taking turns blessing judicial “depravities” and impersonating fair justice.) That type of situation takes place in the modern era with regularity. For example in the case of In re Sawyer, 360 U. S. 622 (1959) The U.S. Supreme Court (correctly) had to intervene to reverse the discipline of an attorney on an allegation of “imputing to the judge unfairness in the conduct of the trial, in impugning the integrity of the local Federal courts.” In other words, in the case of Sawyer, the lower courts sought to create a retaliatory scheme and chilling effect on a counselor who sought to call attention to perceived breaches of ethics and unfair trial practices. Five Supreme Court Justices agreed that the evidence did not establish that the lawyer tarnished the integrity of the presiding judge or reflected on his impartiality and fairness. Nevertheless, a better observation would have been that to have the freedom to consider perceived problems with the administration of justice but without the freedom to voice those ideas nullifies one of the indispensable prerequisites for a free society and obstructs the process of proposing and ushering-in necessary reforms. In that particular litigation, that was what the lower courts attempted to do: Hinder a call for reform. That type of problem is a continuing and pervasive one.

This is one correct approach:

“Being a Judge is a great job. But it comes with downsides. What we do, we do in public, and we subject ourselves to public discussion and criticism of our decisions, both fair and unfair. Federalist №78 noted the importance of Judges being independent of the “effects of those ill humors, which are the arts of designing men, or the influence of particular conjunctures [that] sometimes disseminate among the people themselves.” The Federalist №78 (Alexander Hamilton). That remains just as true today as it was in the 18th Century. Being a judge requires a thick skin and a willingness to make decisions in the face of criticism, even unfair criticism, and to remember that sticks and stones may break my bones, but names can never hurt me.”

— Patrick v. The Daily Beast Co., 2:22-cv-01520-JDW, (E.D. Pa. May. 24, 2023) (case concerning judge who repeatedly sued a news publication for criticism).

Even better approach:

“[J]udges must be kept mindful of their limitations, and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor, however blunt.”

— Bridges v. California, 314 U. S. 252 (1941) (Black, J.) (California state trial court retaliated against the right to petition and the right of the press to report on it).

It is the highest law of the land and one of the keystone principles upon which the nation was founded. [See, R. J. Bronner, The Right to Petition [including cognate rights] (Archibald Cox, Jr. Supvsg. Ed.) (1995).] Thus, when we described the “great” principles of law that also form the body of ethical requirements judges must abide by, we certainly must require judicial respect for the essential privilege of citizenship: The right to fairly petition departments of government for redress, to permit expressions of dissatisfaction with perceived misgovernance, while safeguarding the right of the press to act as an indispensable handmaid of justice in informing the general public, for whom the Constitution was created in the first instance. Our Constitution was to be a genuine system of checks and balances and not a veiled implement of a despotic bureaucracy operating for privileged classes or self-interested factions that impersonate the promise of impartial and even-handed justice.

Evans v. Gore and The ‘Scarecrow’ called ‘Judicial Independence.’

There the Court held Judicial Independence requires judges to be exempt from paying taxes.

It is hard to imagine today, but this is what a majority of the Supreme Court ruled, with one notable exception: Oliver Wendell Holmes.

The opinion was written by Justice Van Devanter (shown below with Mrs. Van Devanter enjoying a night out on the town).

Justice Van Devanter.

In Evans v. Gore, Justice Willis Van Devanter writing for the majority of the Court wrote judges cannot be taxed because of the good Behaviour Clause while not once mentioning the essential requirements of good behavior or considering why that might constitute misbehavior.

“The plaintiff is the United States District Judge…. The tax which he calls in question was levied under the Act …. His compensation or salary as District Judge was included in the computation. Had it been excluded he would not have been called on to pay any income tax for that year. [247] [Diminution may be effected in more ways than one. Some may be direct and others indirect…. [254] True, the taxing power is comprehensive and acknowledges few exceptions. But that there are exceptions, besides the one we here recognize and sustain, is well settled. In Collector v. Day, 11 Wall. 113, it was held that Congress could not impose an income tax in respect of the salary of a judge of a state court[.] [255] Here the Constitution expressly forbids diminution of the judge’s compensation, meaning, as we have shown, diminution by taxation as well as otherwise. *** We conclude that the tax was imposed contrary to the constitutional prohibition and so must be adjudged invalid.” [264]

— Evans v. Gore, 253 U. S. 245 (1920) (page Nos. noted in quotation) (Van Devanter, J.)

Justice Holmes pushed back in dissent.

Justice Holmes

“To require a man to pay the taxes that all other men have to pay cannot possibly be made an instrument to attack his independence as a judge. I see nothing in the purpose of this clause of the Constitution to indicate that the judges were to be a privileged class, free from bearing their share of the cost of the institutions upon which their well-being if not their life depends.”

— Evans v. Gore, 253 U. S. 245, 265 (1920) (Oliver Wendell Holmes, Jr. in dissent) (emphasis).

We should note that Justice Holmes subtly refers to the very ideas in the Massachusetts Constitution of 1780 (discussed above). The stronger observation is that important principles of law are like bicycles — they only take motion from the willingness of judicial officers like Holmes who are willing to give them motion, even when in dissent so that future generations can correct past wrongs. It frequently has been said that Holmes was known for his insightful dissents — this certainly is a profound one. Unfortunately it also appears to have been widely overlooked by the community of legal commentators.

Suffice it to say, that the views of some of our modern Supreme Court judges do not surprise me. The calamity they are visiting upon the nation and Constitution requires immediate correction through a major overhaul in both state and federal ethics oversight systems. To allow it to continue as it has is to invite a national security crisis.

§ 11. Who is to blame?

Certainly it is a mistake to make Judge Thomas the judicial pin-cushion for the totality of the problem of corruption in the courts: There is plenty of blame to go around, but he appears to have earned his sizeable share of the estate.

Erosion of the Constitution’s good behavior requirement certainly is not solely a feature of Republican appointed judges — the problem also exists with equal force among Democrat appointed judges.

For example, in N. Pipeline Construction. Co. v. Marathon Pipe Line Co.,458 U. S. 50, 59, (1982) (plurality), the Court held that, “[t]he ‘good Behaviour’ Clause guarantees that Art. III judges shall enjoy life tenure, subject only to removal by impeachment.” There the Court links the concept of good behavior as strictly being folded into the impeachment process and not as a stand-alone provision. It is a mistake: That opinion makes no effort whatsoever to elucidate the history of the good Behaviour Clause.

Perhaps one might be led to believe that the saving grace of the Northern Pipeline case is that it produced a fractured plurality opinion, but that has never stopped judges from relying on it as there are other carelessly reasoned opinions like it: See Mistretta v. United States, 488 U. S. 361, 410 (1989) (“[A] federal judge … continue[s], absent impeachment, to enjoy tenure ‘during good Behaviour[.]” (citation omitted).

The whole line of cases appears giving short-shrift to the good Behaviour Clause appears to have been derived from earlier off-the-cuff Court remarks — similarly with little constitutional analysis. [See, e.g., United States ex rel. Toth v. Quarles, 350 U. S. 11, 16, (1955) (Black, J.).]

Those earlier cases also failed to consider related provisions of the Constitution, for example, the forfeiture of qualifications clause of Section 3 of the 14th Amendment. [See U.S. Const. amend. XIV § 3 (a/k/a ‘the disqualification clause’ — bringing two categories of judges within its ambit: state and federal).]

In Toth v. Quarles, however, it should be noted that the concept of ‘judicial independence’ correctly is aimed to curb improper influence from other powerful departments of the government and not a provision aimed at ordinary citizens in run-of-the-mill cases (organized crime or powerful lobbies certainly would be exceptions).

“These courts are presided over by judges appointed for life, subject only to removal by impeachment. Their compensation cannot be diminished during their continuance in office. The provisions of Article III were designed to give judges maximum freedom from possible coercion or influence by the executive or legislative branches of the Government.”

— United States ex rel. Toth v. Quarles, 350 U. S. 11, 16, (1955) (emphasis).

Suggested additional reading on what causes corruption in the courts.

• Senator Sheldon Whitehouse’s statement on federal court corruption.

• Archive of reported incidents of federal judicial corruption.

• The Fifth Circuit Created a Rule to Provide Bad Judges with an Escape Clause.

§ 11. Further Commentary.

Much of the information in this article is drawn from a manual on the impeachment power I authored many years ago and recently updated. This article provides some of the basic parameters, nevertheless the manual contains additional and hard-to-ignore historical information.

While the manual focuses on presidential impeachment, it also includes interesting information pertinent to the judiciary.

One example is about Alcee Hastings, a former judge of the United States District Court for the Southern District of Florida. He was impeached by the House (for bribery and perjury by a vote of 413–3) and convicted by the Senate on October 20, 1989 (of 8 of the 11 articles of impeachment). He was only the sixth federal judge in the history of the United States to be removed from judicial office, which should indicate how rare federal judicial oversight is. It is precisely this reason judges frequently point to impeachment as being the only remedy for on-bench misbehavior: That is, impeachment is essentially an illusory remedy. Nevertheless, in Hasting’s impeachment matter, the Senate did not disqualify Judge Hastings from holding future office or service in government and he was successfully elected to the House of Representatives and served there from January 3, 1993 — April 6, 2021. Without intending to self-promote, my manual is the only one of its kind to take a comparative look at the various styles of disqualification and removal from office against the backdrop of the impeachment power — it is supplemented with additional commentary on the subject. I believe that the enduring failure to take in the entirety of the forest while only looking at specific trees has been one of the unfortunate failures of legal pedagogy and scholarship where judicial (and constitutional) ethics are concerned.

Tid-Bits and Trivia.

• Professor Raoul Berger.

Prof. Raoul Berger — celebrated legal historian; author of standard texts on distribution of government power.

Professor Raoul Berger was the foremost authority on the “good Behaviour” Clause. In earnest, I have found no modern scholar who is a close second on that particular provision of our Constitution. Professor Berger was the Charles Warren Senior Fellow in American Legal History at Harvard Law School, and his research was top-shelf: unblemished, rigorous, and impressive. That is not gratuitous flattery: I had the privilege of double-checking his work from original English sources. The mere checking of his work was by itself a Herculean task, which should indicate the amount of serious work he put into authoring it. Through that process, from my own study of Professor Berger’s work, it quickly became obvious that Professor Berger invested a lifetime of effort, was uniquely experienced in his research, and had innate abilities few have. One would have to go back to Alexander Hamilton or James Madison to obtain similar levels of insight. Federal courts — particularly judges with strong backgrounds in legal history — used to refer to Raoul Berger’s work on government distributions of power as persuasive authority, as if it were the law itself.

• The problem in the federal courts is an old one. It steadily has gotten so severe that it risks collapsing the legitimacy of the federal courts altogether.

Back in 1991, former Chief Justice Warren Burger, warned us that the problem of unethical judges was a festering one. That is, for at least 33 years our modern judicial and legal system has been in peril. Any time the top judicial officer of the highest court of the United States starts a sentence about ethics with “The sad truth is..,”we should understand that we have a problem: a serious one.

The fifteenth Chief Justice was a Republican, he was a supporter of Eisenhower (R) and nominated by President Richard Nixon (R). Chief Justice Burger also previously served as an Assistant Attorney General in charge of the Civil Division of the Justice Department, so he had seen the problem as an experienced lawyer and a judge of our highest court. In other words, the problem is a long-running one.

It should be noted that Thomas Jefferson observed that judicial corruption became the norm almost immediately after the break from the crown — the same problems returned.

• Colonial Impeachments of Judges:

Colonists did try to impeach judges; two examples are provided — both failed for different reasons.

• 1774: In the Massachusetts Bay Colony John Adams sought to impeach the Chief justice of Massachusetts, Peter Oliver, because he was suspected of taking crown pay; The Governor, Hutchinson, adjourned the General Court and prevented the Council from taking up the charges.
• 1754: In the Province of Pennsylvania, Justice of the Peace, William Moore, was was targeted for impeachment, but the process faltered after the Privy Council of England ruled that the Pennsylvania Assembly did not have legal authority to bring impeachment proceedings.

A key observation.

In the mid 1700s the colonial population was about 2 million and today the U.S. population is about 332 million. Colonists were active in government affairs through public meetings, assemblies, councils and town hall events. Accordingly, even when colonial officials considered seeking an impeachment, the people had a far greater direct voice than they do today. To say that colonial impeachment was purely legislative misses the mark.

Moreover, because of population growth impeachment has become a far less potent remedy. Certainly, bad apples on the bench realize this factor and are prone to exploit it. In 1789 Massachusetts had 1 federal judge and in 1850 California had 2. Today California has over 100 federal trial judges and Massachusetts has 13. That means it is more difficult for the Congress to commence an impeachment inquiry and it is far more difficult for the general public to be involved.

• Massachusetts 1789: State organized as one judicial district with one judgeship by the Judiciary Act of 1789–1 Cong. Ch. 20, September 24, 1789.
• California 1850: New state was organized into two judicial districts, Northern and Southern, with one judgeship each — 31 Cong. Ch. 86, September 28, 1850.

List of Judicial Impeachment Proceedings.

What we see from the judicial impeachment data is that there were 5 impeachments in the 1800s; 5 in the 1900s; and 2in the 2000s. Nevertheless, we need to factor-in population growth. For example, the U.S. population in the year 1800 was about 5 million and in 1900 was about 77 million. So, merely looking to a similar number of impeachment proceedings is a poor metric for gauging the effectiveness of the remedy. It is clear that the remedy, dangerously, has become diluted.

1803

John Pickering Convicted:

1804

Samuel Chase of the Supreme Court of the United States. — Acquitted

1830

James Hawkins Peck Acquitted:

1862

West Hughes Humphreys — Convicted

1873

Mark W. Delahay — Resigned in1904.

1904

Charles Swayne Acquitted: By the Senate on February 27, 1905.

1912

Robert Wodrow Archbald — Convicted.

1926

George Washington English — Resigned.

1933

Harold Louderback — Acquitted.

1936

Halsted Lockwood Ritter — Convicted.

1986

Harry Claiborne — Convicted.

1988

Alcee Hastings — Convicted

1989

Walter Nixon — Convicted.

2009

Samuel Kent — Resigned.

2010

Thomas Porteous — Convicted.