Talk:Associate Justice of the Supreme Court of the United States

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"Their number, determined by an act of Congress, is currently eight [...]." Which act? What is the name of the act? When was the number of Associate Justices changed? 2004-12-29T22:45Z July 9, 2005 06:51 (UTC)

"The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." 28 U.S.C. § 1. This section was last amended June 25th 1948. --Cooleymd 23:19, 25 March 2007 (UTC)[reply]

"The First Judiciary Act created a Court with six members. This was increased to seven in 1807, to nine in 1837, and to ten in 1864. An 1866 statute, enacted to prevent Andrew Johnson from making any appointments to the Court, provided that no vacancy should be filled until the number of associate justices was reduced to six, but before enough deaths had occurred to accomplish this object, an 1869 statute was passed setting the size of the Court at nine, where it has since remained." 20 Fed. Prac. & Proc. Deskbook § 4. --Cooleymd 23:28, 25 March 2007 (UTC)[reply]

This article needs a lot more citing, in general. However this recent edit seems problematic. It needs to be cited, or better, amplified to say something like "good behaviour" (US Constitution: Article 3, section 1, second sentence) which is effectively "life". There are many sources for the constitution, here is one I found: Emory law library Hope that helps. ++Lar: t/c 01:57, 18 April 2008 (UTC)[reply]

The constitution does indeed say "during good behavior," but statutory text is not necessarily law, it is really only "ostensible authority." The "good behavior" subclause is a good example of non-self-executing authority. Only through the impeachment process that an adverse finding with respect to good behavior could ever legally compel a Federal judge to leave office. Other bodies do weigh in on Federal judiciary performance, but they can only make recommendations, not force them from office. Consequently the clause is not only not self-executing law, it is non-justiciable because of the political questions doctrine. The article correctly says that they may serve for life unless impeached. This is accurate. Therefore, the edit in question adds nothing to this article. The author is not "dispelling any proletarian myths." He is cluttering the article and drawing attention to himself. Non Curat Lex (talk) 18:35, 18 April 2008 (UTC)[reply]

Non Curat Lex,

Incorrect. First, lets make sure that we are on the same page here and speaking about JUSTICES, not judges (see, e.g. 28 U.S.C.A. § 451) as you used in your text above; while there are few differences necessary to the following argument, practical distinctions do exist (see, e.g. Assassination Statute for Justices, 18 U.S.C.A. § 351), and is probably good for you to understand.

Before addressing the merits of your argument, let me comment on the image created by equating text from the SUPREME LAW OF THE LAND with that of mere "ostensible authority"; in all honesty, I had not before now heard the two ideas put together in a single sentence, and must say it conjures a vivid, though inaccurate assumption that the constitution ceases to be law unless it is enforced, by itself, no less. Wow!

On the merits, it appears that what you mean by "non-self-executing" language is that such law is a "political question" (I'm gathering this from your sentence in which the two are conjoined). First, (even if your statement could be proven true), the "good behaviour" clause in no way resembles a political question, and second, even if the impeachment process, or mechanics, remain outside of the Court's duties, The Court retains the ability to define what "good behaviour" is (see 1 Cranch 137, 177). You may have noticed the common thread that political questions require courts to refrain from defining the proper processes or procedures of certain constitutional imperatives, while remaining perfectly free to delimit what goals these processes must ultimately serve or what definitions these processes must occur under. This is clearly illustrated in Powell v. McCormack (395 U.S. 486 (1969)) in which the Supreme Court was called to decide the meaning of "expelled" in Article I, section 5, clause 2 of our (ostensibly authoritative) Constitution. The Court found that despite the legislature's freedom to determine the procedural methods and requirements for expulsion, the legislature had failed to honor the Court's definition of expulsion - namely that a congressman be seated with the body so as to be expelled from it and not excluded. Naturally, other examples abound, such as the Courts command of "one person, one vote", while abstaining from the political districting of voting boundaries that legislatures may draw to meet such goals. Because the court has not assigned the definition of "good behaviour" to a co-ordinate branch of government (see, e.g. Luther v. Bowden, 48 U.S. (7 How.) 1 (1847)). The real "political question" remains whether or not the Supreme Court would choose to assign such definition to a co-ordinate branch to avoid an appearance of impropriety in the regulation of its own affairs. For the Court to exercise its powers of definition, it would likely seek to avoid substitution of political considerations by congress for "good behavior", as occurred during the impeachment of Justice Samuel Chase (See M. Elsmere, The Impeachment Trial of Justice Samuel Chase 205 (1962).

Of course, the Supreme Court, though in dicta, has already endeavored to define "good behaviour". Such statements as the "practical equivalent of life tenure" (see, e.g. U.S. v. Hatter, 532 U.S. 557, 567 (2001)) have been used to define the phrase, suggesting that by the common meaning of tenure, cause must be produced to remove one from the position; however, while this is "practically" like life, it retains a practical distinction. Other courts have preferred to define the concept as life with a limitation, such as: Article III power requires that its officers serve terms of "life during good behavior" (see Freytag v. C.I.R., 501 U.S. 868 (1991)), thus excluding, for example, Bankruptcy judges who serve 14 year terms and may be removed for violations other than that of good behavior (458 U.S. 50, 60 (1982)).

In all, using "life" in the article is a sloppy shorthand that carries little weight as against the (ostensibly) authoritative language of the constitution. Practically, it is absurd to speak in such terms when there are other means of expression; it is like a written employment contract at General Motors informing an employee that he has been hired for a life term! (and then providing in the fine print: "so long as you are not fired, or forced to resign, or the company does not go under or move away.) Why use such language? Evenin' scrot! (talk) 07:01, 7 September 2008 (UTC)[reply]

Reply to User "Evenin'scrot!":

A) If it's "life [and] during good behavior," why not add "during good behavior" without deleting "life?" What you wrote above does not justify what you have repeatedly done to the article.

B) Next, I will briefly address your meaningless and pedantic distinction betwene judges and justices, which has no relevance to this discussion. We are speaking about all Federal Judges to whom Art. III applies - this includes but is not limited to the Associate Justices of the Supreme Court. Art. III, s. 1 reads: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office" (emphasis added).

C) Your comparison to an employment contract is inapt for several reasons.

First: the hypothetical employment contract you have offered is fishy -- telling someone they are hired for a life term, but really hiring them at-will, and attempting to disguise the at will qualifications, as you suggest, might be fraudulent.

Second: it is not comparable to the life tenure of a judge. Art. III Federal judges do presumptively have life tenure (in a way, it is the only thing that makes them Art. III judges, since the U.S. also has other Judges which are not within Art. III).

Third: Your volumes of citations speak silence. You can dance around it all you like, but the only way to defeat the presumption of life tenure is through impeachment. Impeachment is the EXCLUSIVE means to determine if an Article III Judge has breached his duty of"good behavior." Consequently, an Article III judge serves for life, unless he or she chooses otherwise, or it is proven that he breached the duty of good behavior. Life tenure is the rule; impeachment is the exception.

Therefore, I contend that the article accurately states this qualification to the rule of life tenure. A federal judge's tenure does not end upon any breach of good behaviour. Several federal judges have been censured or investigated for breaches by other judges; they may or may not have breached the duty of good behaviour. Their tenure goes on unless and until that is determined by impeachment proceedings.

Thus, to omit the reference to life tenure, and say that the judges serve only only to "good behaviour" would be sloppy shorthand, and not the other way around.

3) The above is what I mean when I say the good behavior provision is not self-excuting. I mean that the breach of the "good behaviour" standard is not sufficient to end the tenure of a federal judge. It requires an act of legislature. (You can take issue with my use of the term, since impeachment is quasi-judicial, quasi-legislative, and not within the traditional meaning of legislation needed to implement a non-self-excuting treaty, in the international law context, but it won't change any of the other problems here). This has nothing to do with the political question problem.

I do not mean that a Federal Judge who was barred from office without being impeached could not sue upon it. The good cause standard would probably be deemed self-executing in that context - but only if the case did not present a political question. The one time a Federal Judge contended this had happened, the case was dismissed as non-justiciable. Nixon v. U.S., 506 U.S. 224 (1993)).

Thus, it is nevertheless probable that a political question would exist - which, if I understand you correctly, you concede.

Finally, let me also address this: "Because the court has not assigned the definition of "good behaviour" to a co-ordinate branch of government (see, e.g. Luther v. Bowden, 48 U.S. (7 How.) 1 (1847))."

I won't nitpick your grammar, but I will address a number of other problems. First, it's Luther v. Borden. Second, that case held the "Republican Form of Government" was nonjusticiable to confer an individual right. The matter of "textual committment" was only part of its discussion therein. The true case on point is Goldwater v. Carter, 444 U.S. 996 (1979). Under that test, (this part of it recently reaffirmed in Vieth v. Jubilier, 541 U.S. 267 (2004)), there is, inter alia a non-justiciable political question if a matter is "textually committed to a co-ordinate branch of government." The Court's position is not that the court assigns things; the court cannot touch something textually committed to another branch. Granted, it is also the court's position that has the final word on the meaning of the text. Still, your sloppy shorthand is disingenuous, and your use of the authority inaccurate.

For that reason, while the court may have authority to determine the meaning of good behavior, I am quite certain it would refuse to hear a case by an impeached judge who argued he was impeached without a finding that he had breached his duty of "good behaviour."

Your edits are without merit. Please give it a rest. Non Curat Lex (talk) 07:52, 7 September 2008 (UTC)[reply]

Lex,

I most admire your response on the distinction between Justices and judges, which you support with the express language of the Constitution!!! (Yet both "Justices" and "judges" are used in the language of the Constitution, the former being a specific category of the latter, and the latter carrying with it special distinctions (see, e.g. Art I, sec. 3, cl. 6)). Again, this distinction has been further embellished in statute and case law. Aside from your reliance on the express language of the Constitution (which I still remain quite excited about), the remainder of your argument returns to some double-think in which "good behaviour" is not awarded the same value by you, despite being express language, and its lack of clear definition in other legal sources. What you've endeavored to argue, I take it, is your belief that the term "life" is somehow supported by a connection to the politcal question doctrine.

Returning to the political question doctrine, in your third to last paragraph you are correct: The case is Luther v. Borden. From there, your argument makes a bizarre digression claiming that Vieth v. Jubilier is somehow on point and controlling, despite the fact it contains no holding (there was no 5th vote for the plurality) over-ruling Bandemer, which held quite the contrary on the issue some years before. The case with an actual majority holding on the topic, League of Latin American Citizens v. Perry, concluded that political gerrymander may sometimes present a justiciable issue, and nothing more.

Nixon, which you cited, is more on point and certainly bolsters again the distinction between the processes and outcome; there, Nixon complained that the Senate process for impeachment was unconstitutional (i.e. the use of a subcommittee recommendation vs. a fully seated house). Again, the Court found the process to be solely within the powers of, and textually assigned to, the legislature.

The real weakness in your argument, however is not the flawed use of case law, but the flawed logic: you appear to suggest that textual commitment, in the discussion at hand, is the major premise for the court assigning responsibility to another branch of government. Of course, we both know that textual commitment is only a one a variety of reasons for judicial abstention under political question, which may boil down to something as practical or mundane as the Court's anxiety over being embarrassed with a potential non-enforcement of its ruling. In any case, to reach the court, another branch of government has already assumed and been challenged on its use of power in some sphere; and in a case where the Court abstains, we see the Court allowing another to be assigned the responsibility. After re-reading your post, I see you seem to take some issue with the use of "assigning"; if it helps you any, think of it as passive assignment, while not necessarily ratification, as the court leaves the issue alone co-ordinate branch exercises a power on its own.

So, while political question is one possible outcome over "good behaviour" (though what isn't a possible outcome with the court), it is not certain the language could not just as easily be defined in a holding by the Judicial branch, while leaving the impeachment process completely in tact, or even defined in circumstances outside of an impeachment.

Of course the factual analogy which concluded my prior post was meant to demonstrate the bizarre use of life as a manner of speaking, not as a matter of law. Generally, we do not speak in overbroad terms and then supply limitations to return to the proper scope: e.g. I will be getting taller for life unless I stop growing.

If you believe that using "life during good behavior" is a suitable compromise, then I might be inclined to agree. At least the language appears in a published opinion as an inferential explanation for the term which federal judges (though not necessarily justices), sit. I expect such will be the only way to keep that nitwit Lar from further complaints about and continually unhelpful revisions to the article. Evenin' scrot! (talk) 10:06, 7 September 2008 (UTC)[reply]

"Evenin' Scrot:"

1) "For life... unless impeached" is most accurate, and what the article says now.

2) Not all Federal Judges sit for life. Only Article III judges (which includes each Supreme Court Justice).

3) You continue to characterize the description of "life tenure" as overbroad. I continue to adhere to the position that a Federal Judge can leave office only by impeachment, by choice, or by death. That IS a life tenure. So there are two possibilities here: there is a conidition you think I am missing, or you don't think that constitutes a life tenure.

4) The fact that "for life" could be a long time, or someone could choose to end it - or fumble it - before its designated end, does not make it "overbroad" in the eyes of the law. See e.g. life estate.

5) Your statement that one should not start with an overboard term then state limitations is very flawed. First, I think it is circular. Moreover, people speak of general rules, then give exceptions, all the time. This is a ubiquitous practice. A broad general rule MAY be overbroad if the exceptions aren't given, but if they are, then it is broad, but no[t] overbroad, because it is no more broad than necessary to be accurate.

6) Your personal attack on Lar is uncalled for and inappropriate. He is not a legal expert, but his policing of this article is consistent with his committment to Wiki. You will refrain from further personal attacks on either of us. Non Curat Lex (talk) 07:22, 8 September 2008 (UTC)[reply]

Answer:

1) Accurate…perhaps. Most accurate? Most precise? No. Let's struggle to make Wikipedia better than those other sources out there.

2) Incorrect. Take, for example, ALJs throughout the federal system who are appointed to “life tenure”, by your definition. Unlike say, Article-I bankruptcy judges, or district court special masters and magistrates which serve only set terms, the term for the majority of ALJss is not set, and they can only be removed/suspended for cause (of course, such cause is not raised by the legislature but by the Merit Systems Protection Board). Naturally, the most prominent example of such tenure are those ALJs that conduct hearings under OSHA, whom the commissioner appoints for “life” under 29 U.S.C. 661 (see 3 West’s Fed. Admin. Prac. § 2801 (3d ed.).

3) Interesting you should mention that. Going back to your mistake above about life tenure, there has been other literature that relates exactly these two points. For example, Easterbrook’s “Success” and the Judicial Power notes that an administrative law judge's tenure “is not formally life, but then neither is that of article III judges. [T]hey serve only during ‘good behavior’” (65 Ind. L. J. 277, 279 (1990); see also 86 Min. L. Rev. 625, 678, fn. 329 (2002). My point is that I am not the only voice asserting that it’s not quite as simple as “life”, and have particular difficulty with the fact that you are substituting your words for that of the constitution, when it is not your job to say what the law is, but the Court’s (Marbury, et. al.). It may seem simple to you to use the converse in logic (often fallacious, anyway) and conclude that impeachment or death or choice = life tenure = good behavior. Unfortunately, the law isn’t what you think it means, but what as few as 1 Justice on the Supreme Court thinks it means (in a plurality opinion, for example, where the narrowest holding controls). For that matter, any judicial authority is more controlling than your own, and thus far we have the constitution itself, and a few judicial opinions (some mentioned in my previous responses) that still hesitate to bestow “life”, without conditionals, as the judicial synonym for good behavior.

4) Pretty neat argument here (I actually mean that), but unfortunately skips an enormous step: we don’t yet know whether good behavior means life! Before defining terms, should we not first determine whether or not those terms are actually a valid part of our universe of discussion?

5) Wow. I think you definitely proved that point - the last sentence alone is a mind boggler (speaking of circular!), but I give you credit for trying to get it all out.

6) I cannot tell whether this is a prophecy or a command. As far as the prophecy goes, I have already invalidated it; and as far as the command is concerned, you certainly cannot limit the way I communicate about you or your opinions in media outside of wikipedia. My blog is ample evidence of this. —Preceding unsigned comment added by Supervox2113 (talk • contribs) 09:01, 9 September 2008 (UTC)[reply]

Supervox/Snookerhorn/Censored: Thank you for bringing your sockpuppet back out of the closet. Thank you for re-posting your comments.

1) You may feel that it is appropriate to fairly accuratley represent Judge Easterbrook's position on the distinction between service during good behavior and life tenure. However, his position concerned ALJs, not Article III Judges, such as the Associate Justices of the U.S. Supreme Court. Therefore, his position is applicable only by analogy. I am concerned that this would constitutes ORIGINAL RESEARCH and I am therefore opposed to its inclusion. If it is to be included, it should be properly qualified. Besides, as you yourself have observed, ALJs do not serve until they quit, die or are impeached; they serve until they quit, die, or are removed by a bureaucrat. There is a world of difference between "good behavior" qualified by impeachment and "good behavior" as qualified by bureaucratic removal for cuase.

2) My argument does not "skip a step." As the authority you have already quoted indicates, appointment during "good behaviour", subject only to qualification by impeachment, is tantamount to life tenure.

3) Subject to applicable law you may blog whatever you wish. However, as far as wikipedia is concerned, whether prophecy or command, you dare not violate it here.

4) At the end of the day, you don't have to convince me that you're correct. However, you have failed to convince anyone else. You could get a dozen other editors from WP:law, or a dozen other admins here, but the majority aren't going to take your side. The status quo will be protected.Non Curat Lex (talk) 20:04, 9 September 2008 (UTC)[reply]

Answers:

1) Luckily, your bald assertions do not constiute original research, since they are not published in a Court reporter, Law review, or sovereign constitution. Also, since in paragraph 4) of your response, authority is clearly not based on what persons in positions of judicial power say about the law, or what the founders of the United States said, but what "a dozen other editors" from wikipedia say, I understand why I have wasted my time presenting all this "original research" for our discussion which you have graciously pointed out.

2)Similar to, practically, almost, still isn't "life". Therein lies the subtle distinction and the whole nature of the debate.

3)Let's save space here for relevant issues.

4)Of course, it saddens me to see the nature of this discussion degrade to "I bet more wikipedia editors think I'm right", but I suppose you have exhausted attacking my argument. Naturally, I'm sure I don't have to point out to you how "right" about things the majority in society always is, or that great portions of the constitution were drafted to protect against this "rightness". In any case, if you desire a focused argument in the future, I have developed a question in a fashion which I think will help us better stay on target. Let me know if you are interested. Supervox2113 (talk) 21:56, 9 September 2008 (UTC)[reply]

This is a red herring. The discussion does not come down to might making right. However, it is not irrelevant either. Majority rule does not dictate right. But wikipedia rules are not always about right, but about consensus. To change an article over objection, there must be a consensus. Good luck building one. Until then, you should leave the article alone.

As for this subtle distinction, sometimes, a distinciton is too subtle to be meaningful. Sometimes it is not. This, I can assure you, is one of the times when the distinction is trifling. As I've said, you still have yet to show even one example where an Article III Judge (or Justice) involuntarily left office without impeachment. Find it, and the distinction will become material. Otherwise, it is not. Non Curat Lex (talk) 02:16, 10 September 2008 (UTC)[reply]

P.S.: Personal attacks are relevant. Persistent incivility is a good way to get involuntarily excused from editing wikipedia. If you are blocked (again) who will champion your position? Moreover, resorting to personal attacks is generally regarded as a tacit concession that one has lost faith in the merits of one's own position. (And, so far, my propehecy still appears true. Good for you.) Non Curat Lex (talk) 02:20, 10 September 2008 (UTC)[reply]

I'm going to respond to your latest response in corresponding paragraphs, respectively:

1)Wow, I absolutely love your sentence: "Wikipedia rules are not always about right, but about consensus." Speaking of red herrings, when did we start debating the rules of wikipediaon here? Have we been debating whether or not the rules of wikipedia require consensus to be legitimate? Regardless, I love the fact that you believe that even it's not important that the rules are wrong, but only that there is a consensus which believes that the rules should be wrong. Oh, by the way, speaking of your “consensus”, you may want to view the Supreme Court of the United States article, which uses “good behaviour”, not “life”, as the formal description of the term served. I’m sure you will be shocked to learn that I did not add this to the article (though I did add the constitution’s “u” to “behavior” (=behaviour) so it would be more exact with the constitution).

2) Next, you argue that the distinction that we are discussing (the actual subject of debate on this page) is not meaningful because: “[I] still have yet to show even one example where an Article III Judge (or Justice) involuntarily left office without impeachment. Find it, and the distinction will become material. Otherwise, it is not.” Of course, the most prominent example which comes to mind is John Rutledge (whom you have obviously never read about), who served as Chief Justice before being rejected by the Senate. Hooray, the distinction is now “material” in your eyes. Of course, while Rutledge is commonly acknowledged as the only Justice forced out of office (to date), less certain examples do exist because the exposure of their dealings have not been as public. Hunt and Moody are notable examples, who both suffered disabilities while in office but would not resign until Congress augmented their benefits through “special” legislation. Some popular talk about Whittaker, who had a nervous break-down in office, is that he made an informal agreement with Warren to later serve on a lower court, which Warren later denied after Whittaker’s resignation and despite Whittaker’s repeated pleadings. I am sure I should not have provided the last three examples, as I expect that is where you will focus any rebuttal to this argument, but then I can’t help but point out these examples as they are particularly intriguing to me and I personally believe that those Justices did not in fact “voluntarily” retire, but required some “help” in doing so.

3)You can see my talk page for a response to this, as it is off-topic and inappropriate. —Preceding unsigned comment added by Supervox2113 (talk • contribs) 01:04, 11 September 2008 (UTC)[reply]

I am not sure how to interpret your recent silence, but suspect you are inviting me to argue from the offensive! (a welcome change:)

Perhaps to repass a bit on the discussion about involuntary removal, where you argued that impeachment as the only way to fulfill such an end. Of course, historically this has not been true, as the Act of 1790 (See Act of Apr. 30, 1790, ch. 9, s 21, 1 Stat. 112, 117; “Act for the Punishment of certain Crimes against the United States.”) provided that federal judges convicted of bribery would be automatically removed from office for violating "good Behaviour", and would be perpetually disqualified from ever re-attaining office thereafter. Given the time period, this does give us a nice insight as to what, say Alexander Hamilton may have meant in Federalist Paper No. 78 when he referred to "good Behaviour" as the condition necessary to prevent the Judiciary from exercising it's will, rather than its judgment (While "good behaviour" is written with Hamilton's supplied emphasis throughout the document, "life" is never mentioned ; a copy is available at Hein Online if you are interested). Of course, none of this is a large surprise, considering "good Behaviour" wasn't an invented term within the U.S. constitution, but rather appeared in numerous constitutional documents throughout the enlightenment era, and specifically migrated to the U.S. constitution from English legal parlance, in which "good behaviour" carried the tacit assumption of removal by and from within the Judiciary itself (See, e.g. Yale Law Journal, How to Remove a Federal Judge, 116 YLJ 72, October 2006). So, the closeness of the Act to the ratification of the constitution and to the beginning of our government in 1789 suggests that the current interpretation of "impeachment only" has perhaps fallen out of step with a more original meaning of "Good Behavior." Ironically, as recently as 1994, Congress found itself considering a return to this doctrine, as expensive impeachment proceedings were being levied against several convicted judges who were finding it difficult to conduct judicial proceedings from inside their prison cells (See 94 CLMLR 1617, Bribery and Other Not So "Good Behavior": Criminal Prosecution as a Supplement to Impeachment of Federal Judges, June 1994). And, Federal tenure statutes still employ "good behavior" and not "life" to prescribe tenure (See, e.g. 28 U.S.C. § 134(a)), even though the current Senate subcommittee recommendation (to my knowledge) is that impeachment is the only "constitutional" means to remove. Thus, even the congress itself waivers between whether or not impeachment is the only permissible constitutional means of removal.

From what you have written thus far, I am able to ascertain a few things which you appear to believe:

1. When distinctions exist between legal definitions, the express language of the Constitution is an appropriate default (you did this when I drew the distinction between judges and justices (and ironically used the same article & section for your argument from which I am choosing “good behaviour”)).

2. You agree that a material distinction exists between the definitions “good Behaviour” and “life” (you conceded this after I supplied the example you requested).

3. Yet despite this, you somehow believe that wiki readers should not be exposed to what the constitution actually says, as you’ve settled the issue. Wiki readers should read what Non Curat Lex thinks the law is, not what the U.S. congress, numerous Supreme Court Justices (across 20 published opinions, 14 prefer good Behavior for discussion), the 51 lawyers who drafted and created the constitution itself (choosing “good Behaviour” over “life”), or the scholarly comment (from Alexander Hamilton to Judge Easterbrook), all of whom have chosen “good Behavior”.

Given the fact you have spoken only for what you think a few other Wikipedia editors would say, I fail to see how you have the “consensus”. Regardless, I believe what we fundamentally disagree on is what wiki readers should be greeted with when they enter the article: a primary definition, express in the constitution and unchanged for over 200 years, or a secondary definition that is construed and conditioned on the on the existence/presence of other factors, which may or may not be present, or even valid. Given the uncertain nature of what “good Behavior” may functionally mean, either historically or by your “consensus”, it makes sense to err on the side of safety, until one side or the other possesses something which contains some juridical certainty surrounding the area. If readers are confused by the express term, they are always free to consult the discussion page! Supervox2113 (talk) 09:57, 12 September 2008 (UTC)[reply]

At the risk of sticking my nose into what appears to be a discussion in which the tone seems to me to be that of Usenet rather than wikipedia and for which I may not have the stomach, I want to point out a couple of things: first, Rutledge seems to me to be a red herring; he was a recess appointment, and as such he did not receive an appointment that was to be held "during good behaviour", but rather an appointment whose term had an explicit expiration date, as per the Recess Appointment Clause of Article 2 Section 2; he was no more "forced out of office" than any of the other multitude of recess appointments of federal judges and federal officials that were later rejected (or on which the Senate took no action). Unless you are suggesting that the caveat of recess appointment terms be included into the lead of the article, I really do not see it as terribly relevant (and I think including it in the lead would be a bad idea; of course, some words about recess appointments somewhere later in the article might not be amiss; I thought there were some in Chief Justice of the United States, but it seems that they are actually in Supreme Court of the United States). Second, it seems to me that your quoting the Act of 1790 in fact strengthens the argument of Non Curat Lex that "good behaviour" is not self-executing, but rather that its meaning is dependent on other laws and opinions; in which case the current meaning is that given by NCL. I have no objection to the current wording, and would not like to have only "during good behaviour". A possible concensus compromise could be the same wording that appears in Chief Justice:

The U.S. Constitution states that all justices of the Court "shall hold their offices during good behavior," meaning that the appointments only end when a justice dies in office, chooses to retire, or is impeached by the House of Representatives and convicted by the Senate.

Magidin (talk) 18:48, 12 September 2008 (UTC)[reply]

SV: Interpret it like so: my moving papers don't draft themselves. I have work to do, and can't spend every single minute defending wikipedia from nonsense. Your irrelevant anecdote doesn't help your position. You do have a good point about the one-time automatic disqualification of convicted bribe-takers... except, those provisions are not still good law, are they? Still, there is not genuine uncertainty about the meaning of "good behavior." The Prakash and Smith article "challenges the conventional wisdom" but is quite express that it is going against the consensus; the cite, inter alia, no one less weighty than Martin Redish, as representing the consensus. 116 Yale L. J. 116, 74 n. 5 (citing Redish, Judicial Discipline, Judicial Independence, and the Constitution: A Textual and Structural Analysis, 72 S. CAL. L. REV. 673, 692 (1999)). One Redish is worth a dozen Prakash or Smith.

I believe you are trying to create uncertainty, where one does not exist. Trying, but not really succeeding.

I don't understand your reluctance to discuss (or listen to me rely on) wikipedia's rules. I am doing what I'm duty-bound to do, or not do - namely not to edit-war. It doesn't matter if I am "a self-styled expert." I'm presumed to know the rules, and responsible not to violate them. I'm not going to risk my right to participate in wikipedia. Hence, I am not going to abstain from making any changes. If you try to subvert the status quo without building a consensus, and without addressing my objection, I will do everything within the rules to prevent you. If you want to see the article changed, you will have to build a consensus, or find a proper way to overcome my objection. So far that's not happening, is it?

Magidin: to the best of my knowledge, you are correct, and I support your proposed revision, above.

It can be mentioned that there are, or were, other ways of removing an associate justice - recess appointees, and one-time automatic disqualification for convicted graftees could also be included, but are hardly a high priority. It can also be mentioned that some scholars have suggested other options or interpretations. There is nothing wrong with that. I have no objection to any of that. Thank you for contributing. Non Curat Lex (talk) 22:44, 12 September 2008 (UTC)[reply]

Magidin,

Let me state first of all how nice it is to have fresh blood in the debate; and that with respect to your belief that “good Behavior” should appear in the article, I agree with you completely. Of course, mine is the converse concern to your own: that “life” should not be the only thing which appears respecting term of office. I would greatly like to hear any further suggestions you may have about where to phrase such language within the article. And, because returning “good Behavior” is my over-riding concern with respect to this response, please feel free to read no further if you do not desire (or cannot “stomach” a response to your other comments:).

To address your argument about Rutledge, Lex had asked for “ [E]ven one example where an Article III Judge (or Justice) involuntarily left office without impeachment.” Of course my response was required to get him to concede a point, not to elaborate on whether recess appointments are somehow not true "Article III" justices because, as you claim, they do not serve during “good Behaviour” (which they in fact do). The obvious point is that Rutledge was involuntarily removed (he was rejected; his term did not expire), as there is little question that he was a true Article III judge, since recess appointments are granted full exercise of Article III powers, only without some of the personal benefits (See, e.g., U.S. v. Allocco, 305 F.2d 704 (1962); U.S. v. Woodley, 751 F.2d 1008 (1985): stating recess appointment not a mere “housekeeping measure” that prevents creation of full Article III judgeship).

Of course, where you really go wrong is in suggesting that recess appointments are not subject to “good Behavior”. You appeared to assume that because Rudledge was not impeached, that he could not be. However, Rutledge was removed in confirmation proceedings because the Senate disagreed with his political views, and not impeached because he presumably had not committed treason, accepted bribes, or been suspected of other high crimes and misdemeanors. Of course, there is nothing to suggest that because an Article III judge is a recess appointment, he is free to engage in these proscribed acts without the threatened penalty aimed at fully confirmed article III judges: impeachment. In fact, because recess appointments are full Article III judges, their very nature strengthens the distinction between “good Behaviour” and life tenure.

The Executive branch seems to be well aware of this limitation when making its appointments (See, e.g., Gaillard Hunt, The History of the Department of State, 5 AM. J. OF INT'L L. 414, 424-25 (1911) (reprinting President George Washington's commission of Supreme Court Justice Thomas Johnson, which stated that the recess appointment lasted “during his good behaviour, and until the end of the next session of the Senate of the United States, and no longer”). In this way, even the Executive seems to understand that recess appointments, though they expire on the next session of congress, still remain "subject to the provisions of law" (Bush’s letter to Seth Barrett Tillman re: recess appointment of William H. Pryor, Jr., Jan. 3, 2007; See also, 1 The Documentary History of the Supreme Court of the United States 377 (Maeve Marcus et al. eds., 1985) re: commission of Bushrod Washington, citing the same).

The senate appears to be aware of this on more practical terms, as it is probably easier to reject an appointment on any available grounds rather than prosecute an impeachment for specific misbehavior (although this procedure is questionable after Marbury and practically so after Judge Nixon’s case). In any case, “good Behavior” tenure exists independent of “life tenure” as manifest by recess appointments, and there is really no textual inconsistency between terms within the constitution to suggest otherwise. (See, e.g. “Abandoning Recess Appointments? A Comment on Hartnett (and Others)”, 26 CDZLR 443 (2005): “There is no textual inconsistency in saying that a recess-appointed judge must be allowed to hold his office, one which expires at the end of the next Senate session, as long as he meets the standards of good behavior.”)

To address your concern about “non-self-executing” authority, I again believe you missed the context in which it was used during the prior course of the discussion. This term was used merely as an interlude by Lex to suggest that “impeachment” was the only means of involuntarily removing an Article III judge. Throughout the discussion, “impeachment only” remained the polestar of his argument, and of his constructed syllogism, that:

1.“good Behaviour” = “impeachment only”

2.“impeachment only” = “life”

3.Therefore, “good Behaviour” = “life” (and that Life is somehow the superior term, in Lex’s view.)

I have not argued that the phrase is a not a "self-executing" one (although I hate this term, as you can probably tell), but rather that "good Behaviour" is hard to define and is certainly not as simple as “impeachment only”. This is because judges have been removed other than through impeachment throughout the history of the United States and may in fact continue to be so; a history and a consequence which Lex does not want to accept.

In U.S. v. Issacs (493 F.2d 1124), for example, the court found that 18 U.S.C. § 201 allows for removal of federal judges outside of impeachment (i.e. upon judicial conviction for specific crimes). The court reasoned that judicial tenure should not be a “license to commit crimes or forgive crimes committed before taking office”, implying that judges could become “above the law”, simply by remaining in office, and avoiding impeachment proceedings which are limited to trying the same, select misdeeds as under Article I & II of the constitution (namely: treason, bribery, or other “high” crimes and misdemeanors.) The Isaacs court supported the validity of the statute with the 1802 Jeffersonian congress's act that removed several article III judges of the newly created federal circuit courts from office, without impeachment, by sweeping away its jurisdiction completely. This became a central piece of the Isaac court’s belief that even congress’s construction of the constitution “permit[s] the removal of a judge without impeachment”, and that such a construction can be validly vested in statute.

In any case, I hope that “good Behaviour” can be restored to the article as soon as possible. I greatly like the language of Magidin’s “compromise” solution, however I would like to remove “only” from “the appointments only end” because, like anything in law, it is not entirely clear whether the methods mentioned in Magidin's text are in fact exhaustive. Of course, this possibility itself deserves some further attention in the future. Should there be any further disagreement by Lex as to retaining “life” within this description, I suggest we defer to Lar’s language, as posted at the top of this discussion, in the interim. Supervox2113 (talk) 23:54, 12 September 2008 (UTC)[reply]

You haven't responded to me at all. You've just injected a new and collateral issue (the status of recess appointments), and resolved it for yourself. You still haven't shown that an Associate Justice of the Supreme Court (or Article III judges) -- other than those serving recess appointments -- can be removed from office by any means other than impeachment. For this, I am still waiting.

I don't mind the phrase "good behavior" being somewhere in the article - it is in the plain language of the constitution. However I do mind it replacing "life," as you previously did. If you want an article that says "good behavior, which currently means "life tenure,"" or something substantially similar, I have never had a problem with that. Non Curat Lex (talk) 00:27, 13 September 2008 (UTC)[reply]

--Lex,

1a) With respect to "good Behaviour" always being "life tenure", how is it possible for a judge to be subject to good behavior requirements, while having a term set to expire (as in the case with recess appointments?) Do explain.

1b) With respect to judges not being removed other than by impeachment, are you saying that Isaac has been over-ruled? That the Federal statute is invalid? What about the case of Adam's "midnight judges", which were removed from office, without impeachment, when Jefferson's congress erased the federal-circuit jurisdiction completely? I am failing to see how you can maintain your conclusion. Do explain.

2) With respect to the suggested language for the article, I would be ok with "generally means life tenure", perhaps. To suggest that it is always life appears untrue as there are at least a few unusual exceptions (notably recess appointments). —Preceding unsigned comment added by 68.218.222.49 (talk) 03:22, 13 September 2008 (UTC)[reply]

--Lex/Magi

With respect to the recent edit by Magi in the article, would the article be difficult to read if punctuation were maintained from the original Art. 3, sec 1 clause: "shall hold their Offices during good Behaviour"? Would this be unduly distracting to the reader? Supervox2113 (talk) 05:17, 13 September 2008 (UTC)[reply]

Vox: Quoting the article: If confirmed, the U.S. Constitution states that all justices of the Court "shall hold their offices during good behaviour," meaning that the appointments only end when a justice dies in office, chooses to retire, or is impeached by the House of Representatives and convicted by the Senate.

So, the article says "only," which is similar to "always." Perhaps it sould say, "generally" or "almost always," or, "today means, but at one time, may have meant otherwise." The language is correct, but it could be more qualified. Fine.

As for your other, uhm, arguments, all I can say is that they are legally flawed. S. 201 of the Criminal code no longer reads as it did in 1790. The provisions you refer to are no longer operative. Isaacs, cited by you, passim, explains this history.

As for Isaacs, itself, you have distorted dicta and ignored the holding. The issue in Isaacs was NOT removal, but whether a Judge had constitutional immunity from indictment and trial. The court's own summary of its holding was that,

"[o]n the basis of the text of the Constitution, its background, its contemporaneous construction, and the pragmatic consequences of its provisions on impeachment, we are convinced that a federal judge is subject to indictment and trial before impeachment and that the district court had jurisdiction to try defendant Kerner." 493 F. 2d at 1144.

Indictment and trial are different from removal. As Walter Dellinger said, a Federal Judge could conceivably be doing time in Leavenworth, and still be a sitting judge. 94 Colum. L. Rev. 1617 (citation). Ms. Simon's note argues that conviction and removal are a "historically sound" supplement. Her arguments are well thought-out and similar to the discussion in Isaacs about the historical relationship. However, as I think you have, by now, observed, they do not reflect the current law. The article speaks in the present tense. There is plenty of time to talk about history, or theories for future consideration, without distracting from an accurate statement of the current law.

The above quotation and paraphrases are from sources you cited, and I assume you read; you should know what they say before relying on them.

As for your arguments based on recess appointments, these boil down to nothing. Allocco and Woodley concerned the adjudicatory authority of temporary recess-appointees. The Allocco and Woodley courtsheld that while recess appointees serve their temporary appointments, they have full authority, benefit, and privilege of the position they inherited. The courts did not use as broad language to empower the RAJs as you suggest, and you have ignored important limitations mentioned by the very courts. In fact, the court was very clear that RAJs are NOT exactly like Art. III judges. Particularly,

"[a] recess appointee lacks life tenure and is not protected from salary diminution. [...] We must therefore view the recess appointee not as a danger to the independence of the judiciary, but as the extraordinary exception to the prescriptions of article III." 751 F.2d 1008, 1014.

[Interesting that Judge Beezer, joined by then Chief Judge James R. Browning and the host of other notables who joined in the majority opinion (e.g. Arthur Alarcon, Joseph Sneed, seem to share in my "proletarian misconception," word for word. ]

You're emphasizing the part of the case that says an RAJ is "like" the vacancy he fills in order to create a contradiction as follows: (1) an RAJ is like an Article III judge; (2) An RAJ is not appointed for life tenure, but for a term, and is "unprotected" during that term. Therefore, some Art. III judges are not appointed for life tenure. But now you are ignoring the difference between functional similarity and genuine equivalence - only this time, it's material. How material? So material, the court spells it out. But you've skipped over that part where the court, using the very language you've decried, says how RAJs are NOT like Art. III judges, because of a Constitutionally-created exception.

The existence of this language makes it clear that you cannot use this authority to the ends which you have tried to use it, namely to suggest that because of the temporariness of RAJs, you can infer something about the possibility of other Art. III judges being temporary. It just doesn't work.

Clearly, Allocco and Woodley do not have any bearing on whether Art. III judges have life tenure, and, if they did, they would come down on the side of saying that Art. III judges DO have life tenure.

Thus, we are STILL looking for something that you have yet to offer: any presently effective means of removing an Art. III judge from office other than death, resignation, or impeachment. Non Curat Lex (talk) 07:45, 13 September 2008 (UTC)[reply]

Follow-up:

Vox: You summarized my position as...

1.“good Behaviour” = “impeachment only” 2.“impeachment only” = “life” 3.Therefore, “good Behaviour” = “life”

Isn't this a valid syllogism? Non Curat Lex (talk) 11:55, 13 September 2008 (UTC)[reply]

Magidin, Let me state first of all how nice it is to have fresh blood in the debate; and that with respect to your belief that “good Behavior” should appear in the article, I agree with you completely.

Kindly do not put words in my mouth. I wrote nothing of the sort. What I wrote was that I would not like having only the statement "good behavior", and that I have no objection to the current version (which does not include it at all). I proposed a possible compromise that would incorporate it. I most certainly did not state, or insinuate, a "belief that 'good Behavior" should appear in the article." I have no idea where you got such a thing. This is exactly the kind of thing that is likely to make discussions degenerate, and that has given all of your replies the tone of Usenet in my view. Magidin (talk) 03:46, 13 September 2008 (UTC)[reply]

Of course, where you really go wrong is in suggesting that recess appointments are not subject to “good Behavior”.

I did not suggest they were not subject to it; I "suggested" that recess appointments are for a given term (naturally subject to all other restrictions). The point being that they are not open-ended, as are the standard appointments, so removal from office by rejection of a recess appointment is a different issue from that of the standard senate-approved appointment. In any case, it is still a red herring insofar as discussing appropriate wording for the first paragraph of an article. Again, this is not Usenet; the discussions are not meant to be point-scoring bouts or opportunities to show off how knowledgeable you are, but discussions on improvements to the article. Are you suggesting that all of this material be stuck into the article for Associate Justices of the Supreme Court? To the first paragraph of such? Surely not. A separate article discussing it under "good Behaviour", maybe. So... Magidin (talk) 03:46, 13 September 2008 (UTC)[reply]

Lex,

quoting you: "So, the article says "only," which is similar to "always." Perhaps it sould say, "generally" or "almost always," or, "today means, but at one time, may have meant otherwise." The language is correct, but it could be more qualified. Fine."

I am glad you agree. My only point is that without "only", the sentence is 100% verifiably correct. With "only", it becomes a bit more specuous as to the very things we have been going round-robin about in here. So, I am quite glad we finally agree on the language. Thank you for being understanding about this. —Preceding unsigned comment added by 72.243.68.251 (talk) 23:14, 13 September 2008 (UTC)[reply]

That "only" problem may be your only point now, but it wasn't before. This has been issue-pleaded to death. Do you yet realize that there is no current way to remove an Article III judge (other than a recess appointee) besides impeachment, death, or resignation?

P.S. Are you anon-editing to evade your block? That could be grounds for extension of a block. Be careful! Non Curat Lex (talk) 23:33, 13 September 2008 (UTC)[reply]

Mag proposed a separate article on the "good behaviour" phrase. It's an interesting idea. I think there may be enough information out there that the subject is notable. Perhaps Vox would like to start it when his block expires (which is soon, if it hasn't happened already) Non Curat Lex (talk) 23:38, 13 September 2008 (UTC)[reply]

The discussion on this talk page is becoming lengthy and should soon be archived, no later than the end of the month. I think it would be a good idea to summarize the point counterpoint here though, to give continuing notice of the issue of a question as to the content. Non Curat Lex (talk) 11:35, 13 September 2008 (UTC)[reply]

Removed..... need citation

Contrary to popular belief, a Justice who steps down from the Court continues to be a member of it.

Roadrunner (talk) 09:35, 6 August 2010 (UTC)[reply]

There's a question about whether the associate justices of the USSC can be said to occupy numbered seats, with one justice succeeding another, or if they are all simply undifferentiated seats. See

Scalia seems to think so. See my reply in Supreme Court talk page for the citation and reference. Magidin (talk) 19:45, 19 May 2011 (UTC)[reply]

This article says Johnson wad confirmed on November 7, but the Oyez website says November 6. Is there a source for 7th or should we change it? Richard75 (talk) 12:42, 31 August 2011 (UTC)[reply]

Associate Justices tenures end in only 3 ways - 1) death, 2) resignation or 3) impeachment/conviction. There's no mandatory retirement. As for those who became Chief Justice (see Rehnquist)? they too had to resign as an Associate Justice, immediately upon becoming Chief Justice. Otherwise, one would be holding both seats concurrently. GoodDay (talk) 13:49, 16 September 2017 (UTC)[reply]

Why do you believe that retirement is synonymous with "mandatory retirement"? The Judiciary Act provides for retirement of Justices who have served for a certain length of time, and upon that retirement they assume "Senior Status", which is considered to be an end of their tenure at the Court. Those who are elevated do in fact resign from their old position, but for instance Justices O'Connor, Stevens, and Souter have retired and assumed senior status; they did not resign. For instance, O'Connor's letter announcing her decision to step down from the bench identifies the action as a "retirement", as you can see in the PDF of the letter that is available here from the Supreme Court itself, and which reads "This is to inform you of my decision to retire from my positions as an Associate Justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor." [emphasis added]. She didn't resign, she retired. Magidin (talk) 20:16, 16 September 2017 (UTC)[reply]

It's still the same thing, as both require resignation. There's only 3 ways to end a tenure, 1) death, 2) resignation or 3) impeachment/conviction. If there's truly a fourth way? then it should be clarified in the article. GoodDay (talk) 20:47, 16 September 2017 (UTC)[reply]

The article's introduction now states that "a justice's tenure of office ends only when they die, retire, resign, or are removed from office through the impeachment process." The section Retired associate justices also speaks to this issue. Cheers. Drdpw (talk) 22:36, 16 September 2017 (UTC)[reply]

The O'Connor picture on the table looks about half as tall as all the other pictures on the table. Any way to fix that? Magidin (talk) 17:00, 1 August 2018 (UTC)[reply]

@Magidin: I took a look at the image on its commons page; apparently someone uploaded a cropped version of the original photo, but rather than giving it a new file name, simply overrode the previous image. Poor judgement on their part. Drdpw (talk) 18:02, 1 August 2018 (UTC)[reply]

@Drdpw: Huh. So, we need to upload a new photo with a new file name, or what can we do to fix it? It's rather tacky to have the first woman on the Supreme Court end up with half a picture on the table... Magidin (talk) 18:41, 1 August 2018 (UTC)[reply]

Someone uploaded a better version, so I've corrected the link. It looks right at least in my browser now. Magidin (talk) 17:47, 6 August 2018 (UTC)[reply]

The bios of the current associate justices, are using the commission date, as the beginning of their tenure. This article is using the oath of office dates. Can we please stick with one date, instead of differing dates? GoodDay (talk) 18:35, 13 August 2018 (UTC)[reply]

@GoodDay: Bio article infoboxes are the only places using commissioning dates mark SCOTUS "start" dates. All justice list articles use the date a justice took his or her judicial oath as the start date (as do many bio articles as well). I can't speak to why infoboxes mostly use commissioning date, but I can point to what the SCOTUS website states:

The acceptance of the appointment and commission by the appointee, as evidenced by the taking of the prescribed oaths, is here implied; otherwise the individual is not carried on this list of the Members of the Court.
The date a Member of the Court took his/her Judicial oath (the Judiciary Act provided "That the Justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices, shall take the following oath . . . ") is here used as the date of the beginning of his/her service, for until that oath is taken he/she is not vested with the prerogatives of the office.[1]

Based on this, it would appear that it's the infoboxes that contain inaccurate information by using the commission date. Drdpw (talk) 19:22, 13 August 2018 (UTC)[reply]

I messed up the edit summary, but basically, as per the Wikipedia Manual of Style on capitalization of titles, "Apply lower case to titles when used to describe a position." You capitalize the title when it is used to stand in for a specific person, and not in general. So for example, "The chief justice's duties are" is not capitalized because the use is generic, but "The Chief Justice's opinion in U.S. v. Nixon" would be capitalized because the title is used to stand in for Warren Burger. Magidin (talk) 16:20, 7 September 2018 (UTC)[reply]

 Fixed Thanks Magidin for pointing out the discrepancy, Livingston and McKinley are now noted as being recess appointees. Cheers. Drdpw (talk) 17:42, 21 May 2019 (UTC)[reply]

The following Wikimedia Commons file used on this page or its Wikidata item has been nominated for deletion:

• JohnBlair.jpg

Participate in the deletion discussion at the nomination page. —Community Tech bot (talk) 19:22, 21 July 2020 (UTC)[reply]

I just noticed today that the final paragraph on the section stated that both Souter and O'Connor sit in lower courts on occasion. I'm pretty sure Souter still does, but O'Connor certainly does not: not only did she not hire a clerk following the 2015 term, but her announcement in October 2018 that she was retiring from public life after a diagnosis of early stages of dementia certainly puts an end to that. I edited; the phrasing is a bit awkward right now; if someone wants to edit it, or figure out when her last case was, that would be great. Magidin (talk) 22:17, 28 September 2020 (UTC)[reply]

Given that the Supreme Court is comprised of 1 Chief Justice and 8 Associate Justices for a total of 9, why are there justices, such as Clarence Thomas, listed as occupying the 10th seat? 2601:44:8680:5E00:F412:7B18:742B:8939 (talk) 02:24, 12 April 2024 (UTC)[reply]

Because Thomas replaced the Judge that was in the 10th seat. After the Judicial Circuits Act, the 5th and 7th seat is vacant. You can see the full history at List of justices of the Supreme Court of the United States by seat Q ^{T C} 02:33, 12 April 2024 (UTC)[reply]

Thank you. 2601:44:8680:5E00:F412:7B18:742B:8939 (talk) 02:36, 12 April 2024 (UTC)[reply]