ArtIII.S1.2.1.3 Good Behavior Clause: Doctrine and Practice

Article III, Section 1:

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.

The meaning of the Good Behavior Clause has been the subject of longstanding debate. Some have argued that the phrase denotes an alternative standard of removal for federal judges beyond high crimes and misdemeanors that normally may give rise to the impeachment of federal officers.¹ Others have rejected this notion,² reading the good behavior phrase simply to make clear that federal judges retain their office for life unless they are removed via a proper constitutional mechanism. However, while one might find some support in early twentieth-century practice for the idea that the clause constitutes an additional ground for removal of a federal judge,³ the modern view of Congress appears to be that good behavior does not establish an independent standard for impeachable conduct.⁴ In other words, the Good Behavior Clause simply indicates that judges are not appointed to their seats for set terms and cannot be removed at will; removing a federal judge requires impeachment and conviction for a high crime or misdemeanor.

Nevertheless, even if the Good Behavior Clause does not delineate a standard for impeachment and removal for federal judges, as a practical matter, the history of impeachments in the United States might indicate that the range of conduct meriting removal differs between judges and executive branch officials due to the distinct nature of each office. The Senate has never voted to remove the President or an executive branch official, but has done so to eight federal judges.⁵ The conduct meriting impeachment and removal for federal judges has ranged from intoxication on the bench,⁶ to abandoning the office and joining the Confederacy,⁷ to various types of corruption. Congress has also impeached and removed federal judges for perjury and income tax evasion,⁸ although it is unclear whether such behavior would necessarily be considered impeachable behavior for an executive branch official.⁹

Further, leaving aside whether the Good Behavior Clause establishes a separate standard for removal independent from high crimes and misdemeanors, historical conflicts between Congress and the judiciary may inform the outer limits of what the Good Behavior Clause entails. For instance, in 1804 Jeffersonian Republicans attempted to remove Supreme Court Chief Justice Samuel Chase, who they viewed as openly partisan and biased against their party.¹⁰ The allegations against Chief Justice Chase included that he acted in an arbitrary, oppressive, and unjust manner at trial, misapplied the law, and expressed partisan political views to a grand jury.¹¹ The attempt failed, and Congress has never removed a federal judge for disagreement with the law's application or because of difference in political views. Based on this historical practice, the good behavior standard arguably guards against the removal of a federal judge for disagreement with the law's interpretation or political disagreements.

That said, the Good Behavior Clause and the attendant clauses expressly dealing with impeachment do not insulate federal judges from criminal prosecutions.¹² For instance, Judge Harry E. Claiborne, before being impeached and removed from office as a federal judge, challenged his indictment and prosecution as unconstitutional.¹³ Specifically, he argued that the Constitution's vesting of the impeachment power in Congress precludes the criminal prosecution of an Article III judge unless he is first impeached and removed from office.¹⁴ The U.S. Court of Appeals for the Ninth Circuit rejected this argument, concluding that the Constitution's distinction between impeachment and criminal liability was meant to ensure that no individual who had been impeached and removed could claim double jeopardy as a shield against subsequent criminal prosecution.¹⁵ Further, a criminal conviction does not remove an individual from office, Congress retains exclusive power to do so through the constitutional mechanism of impeachment.¹⁶ Likewise, the Ninth Circuit rejected Claiborne's argument that it violates separation of powers for the executive branch to possess authority to bring criminal prosecutions against sitting Article III judges.¹⁷ The court noted that potential defendants receive the same protections that ordinary citizens do, and criminal behavior is not part of a government official's duties.¹⁸ Further, insulating federal judges from criminal liability would elevate them above the requirements of the very law they are entrusted with adjudicating fairly.¹⁹