Years in the Making: Are Federal Judges Living Longer and Undermining the Efficacy of Life Tenure?

by Bryan Kidzus, Senior Associate

Article III, Section 1 of the United States Constitution grants life tenure to all federal judges in courts established under Article III. The text reads, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .”[1] One of the driving factors to grant federal judges life tenure is the premise that a judiciary in a free and functioning democracy must be independent of any other branch of government.[2] The independence of a judiciary serves two functions, the first to create a check on the other two branches; the second to remove judges from the political process in order to ensure “a steady, upright, and impartial administration of the laws.”[3]  Alexander Hamilton and the majority of the framers of the Constitution believed the best way to ensure the independence of the judiciary was to install judges for a term of “good behavior.”[4] For the past 225 years federal judges have enjoyed what commentators have described as the best job security in the country.[5] The decision to appoint judges to a life tenure conditioned on good behavior is not without its opponents.[6]

Commentators have also called for a dramatic change to this seeming permanence for a variety of reasons, including the increase in life expectancy in the United States since the country’s founding, the inherent issues associated with age-related mental decline, such as senility, and the recognition that no other democracy grants life tenure to judges[7].

The grant of life tenure for federal judges was met with resistance.[8] In fact, Anti-Federalists felt that the granting of life tenure to federal judges would make them “independent, in the fullest sense of the word” leading to an out of control judiciary responsible to no “power under heaven.”[9] The fear, stated as an aphorism, was that power corrupts, and absolute power corrupts absolutely.[10] More simply, the judiciary would become a power of the federal government checked only by the undefined and nebulous words “good behavior” in the constitution. Alexander Hamilton countered this trepidation in his Federalist Paper Number 78. In it, Hamilton assured the public that the federal judiciary was by its nature not in a position to cause harm to, or infringe on, the individual rights of the citizens of the United States.[11] This argument was predicated on the notion that the federal judiciary neither held the sword—a function of the executive branch—nor the purse—a function of the legislative branch.[12] Hamilton further posited that the judiciary is the weakest branch of the government, as it has “neither FORCE nor WILL, but merely judgments and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”[13]

This inability of the Supreme Court to effectuate its decisions was exemplified in Worcester v. Georgia.[14] In 1832, the Court ruled against the State of Georgia in a case involving the seizure and encroachment of Indian lands.[15] Following the ruling, President Andrew Jackson refused to comply—he is famously reported as having said, “[Chief Justice] John Marshall has made his decision; now let him enforce it.”[16] President Jackson’s blatant disregard for the Supreme Court’s ruling led directly to the Trail of Tears and the forceful removal of Native Americans from the eastern United States.[17] Another example of the Court’s reliance on the executive branch, this time leading to a more positive outcome, is the desegregation that followed the unanimously decided Brown v. Board of Education.[18] These two cases undoubtedly support Hamilton’s assertions regarding the powerlessness of the federal judiciary. The question, however, still remains as to whether an increased average life expectancy alters the reasoning given by the founders to grant life tenure to federal judges.

At the time of ratification, life expectancy in the United States was much lower than it is now. Life expectancy from birth during the “Liberty Era,” years covering 1750 to 1800, was 35 years.[19] The global average for life expectancy around that time was 29 years.[20] In 2001, the global average was 67 years.[21] The Center for Disease Control currently lists the life expectancy in the United States as 79 years.[22] An increase in life expectancy in general, however, does not correlate directly to increases in the average time an appointed federal judge has been on the bench. Specifically, John Marshall, who assumed the role of Chief Justice of the Supreme Court in 1801, served in that capacity on the bench for 34 years.[23] In fact, Chief Justice Marshall was 79 when he passed away, far exceeding the life expectancy in the country at that time and matching the current life expectancy in the United States.[24]

Though the statistics listed above provide that life expectancy has greatly increased since the “Liberty Era,” a part of the picture is missing. The life expectancy in the United States once an individual reached the age of 20 in 1850[25] increased to an age that is dramatically closer to the current life expectancy in the United States.[26] The life expectancy of a 20-year-old in 1850 was 60 years, and the current life expectancy of a 20-year-old is 77.[27] By altering the starting point for the expectation of remaining years of life, the disparity between then and now substantially decreases, the obvious effect of high infant mortality. Compared to the early years of the country, there is an increase of 17-years for life expectancy. This of course is far less than the 39 years that would be the difference if the life expectancy at birth metric was used. It is highly plausible to conclude, though data on the subject is not readily available, that the life expectancy increase of individuals elevated to the federal judiciary would decrease the difference in life expectancy of judges in the early decades of the nation and judges currently on the bench.

The life tenure guaranteed by the Constitution is of continued importance to democratic society. Life tenure serves an important democratic interest in preserving an independent judiciary from unnecessary political influence. Additionally, the increased life expectancy in the United States has not had a significant effect on the true-life expectancy of appointed judges. Life tenure is a novel and effective approach to the self-evident need of an independent judiciary that will continue to propel federal interests.

[1]U.S. Const. art. III, § 2.

[2]SeeThe Federalist No.78 (Alexander Hamilton) (“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”).

[3]Id.

[4]Id; see also U.S. Const. art. III, § 1.

[5]SeeSteven G. Calabresi & James Lindgren, Term Limits for the Supreme Court, 29 Harv. J. L. and Pol’y770, 771 (2006).

[6]Id.; see also The Federalist No.78 (Alexander Hamilton).  

[7]Calabresi & Lindgren, at 771.

[8]See Federalist No. 78(evidencing the need felt by Alexander Hamilton, publishing under the pseudonym “Publius,” to convince the Anti-Federalists about the benefits of life tenure and how it ensures an independent judiciary.)

[9] The Complete Anti-Federalist 358 (Herbert J. Storing ed., 1981) (quoting Robert Yates, writing under the pseudonym “Brutus” in The Power of the Judiciary (Part I), The New York Journal, March 1788).

[10]Id.see also Niccolò Machiavelli & Robert M. Adams, The prince: a revised translation, backgrounds, interpretations, marginalia (1992));.For further elaboration by Lord Acton, a 19th-century British politician, see Lord Acton Letter to Archbishop Mandell Creighton (Apr. 5, 1887).

[11]Federalist No. 78 (“[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them.”).

[12]Id.

[13]Id.

[14]Worcester v. Georgia, 31 U.S. 515 (1832).

[15]Id.

[16]See Tim Alan Garrison, Worcester v. Georgia (1832), New Ga. Encyclopedia, https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832 (last updated Feb. 20, 2018) (“The decision of the Supreme Court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.”) [https://perma.cc/2FQD-DBB5].

[17]“The Trail of Tears – The Indian Removals,” USHistory.org, http://www.ushistory.org/us/24f.asp (last visited Apr. 16, 2018) (Following the Worcester v. Georgiadecision the Cherokee tribe was forcibly removed from their lands in Georgia and President Jackson did nothing to enforce the holding of the Court. Further, in Federal troops were eventually used to forcibly remove remaining tribes men, women and children.) [https://perma.cc/AP4B-TRFX].

[18]Brown v. Bd. of Educ., 347 U.S. 483 (1954) (Instead of giving direction for the implementation of desegregation, the Court instead asked attorney generals of the states to submit plans of how to proceed with desegregation. Ultimately, President Eisenhower was forced to send U.S. military soldiers and federalize the Arkansas National Guard in order to enforce the ruling); see also Jean Edward. Smith, Eisenhower: in war and peace(2013).

[19]Max Roster, Life Expectancy, Our World in Data, https://ourworldindata.org/life-expectancy (2017) [https://perma.cc/5B3S-VL96].

[20]Id.

[21]Id.

[22]Life Statistics, Nat’l Ctr. for Health Statistics, Ctrs. for Disease Control,https://www.cdc.gov/nchs/fastats/life-expectancy.htm (last updated May 3, 2017) [https://perma.cc/722Z-52D5].

[23]John Marshall, Oyez,https://www.oyez.org/justices/john_marshall (last visited Mar. 12, 2018) [https://perma.cc/4HFX-7JM7].

[24]Id.

[25]Information prior to this date is difficult to obtain concerning age-based expectancy tables.

[26]Life Expectancy by Age, 1850–2011, infoplease, https://www.infoplease.com/us/mortality/life-expectancy-age-1850-2011 (last visited Mar. 12, 2018) [https://perma.cc/GX2G-PQPE].

[27]Id.

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