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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 acted “too independent and too honest to serve the royal will.”

With echoes to today’s Department of Justices, King Charles I wanted to remove him for insubordination, but Sir John believed, based on a common law understanding of his appointment, that he served “quamdiu se bene gesserint,” “during good behaviour,” and wanted the king to show cause.

John died soon after, but the issue did not.

In the 1690s England found itself in a succession crisis, as William and Mary (right) and Mary’s sister Anne (the one from “The Favourite”) failed to produce surviving children, and in 1701, Parliament passed the Act of Settlement to solve this (hence the Hanoverians).

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.

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