How Did We End Up with Life Tenure at SCOTUS?
With so much talk about SCOTUS term limits, we’d like to share some information on the original meaning of “good behaviour” in Article III of the Constitution.
In 17th century England, judges served at the pleasure of the monarch.
Along comes Chief Baron John Walter, who in the late 1620s sought to assert his independence.
Here’s a summary The History of Parliament:
“[King Charles] concluded that Walter’s independence of mind was becoming inconvenient, and in October 1629 [Walter’s] rival [Sir Thomas] Coventry was sent to demand [Walter’s] resignation. Unexpectedly, Walter declined to comply, insisting that he held his office on condition of good behaviour, and that no misconduct had been demonstrated.”
Walter died months later, but the issue did not.
In the 1690s England found itself in a succession crisis, as William and Mary (above right) and Mary’s sister Anne (the one from the movie “The Favourite”) failed to produce surviving children, and in 1701, Parliament passed the Act of Settlement to solve this.
Given the open questions surrounding succession at the time, Parliament in the same law wanted to increase its independence from the crown.
So the common law understanding that a monarch couldn’t fire a judicial officer without cause — that they instead served “during behaviour” — was codified in the act, which our founders borrowed in Article III.
Most Americans would likely be surprised to know that had it not been for a succession crisis in 17th century England, “good behaviour” may not have made the constitutional cut.