Presidential Commission on the Supreme Court of the United States
Those who believe that the Junior/Senior Justice proposal is unconstitutional start with the Good Behavior Clause, which is conventionally interpreted to give federal judges “life tenure”: Federal judges hold their offices for an indefinite period that ends only when they die, voluntarily resign, or are involuntarily removed through the process of impeachment and conviction. Although the Good Behavior Clause does not specify the details of the “Offices” that federal judges hold, the Appointments Clause arguably recognizes a separate office of “Judge[] of the supreme Court” that is different from other federal judicial offices. If so, people who have been appointed to the Supreme Court must remain “Judges of the supreme Court.” Those who believe that the Junior/Senior Justice proposal is unconstitutional argue that Senior Justices (who would be barred from participating in the ordinary work of the Court after eighteen years) do not remain “Judges of the supreme Court” in the sense that the Constitution requires. Indeed, given the enormously consequential constitutional decisions of the Court that this Chapter emphasizes, these critics argue it is implausible to claim that individual Justices can be involuntarily removed from most of the Court’s constitutional work without being deemed to have lost their “office.” In addition, some believe that these specific textual provisions should be understood in the context of more general separation of powers principles, including the principle of judicial independence. Part of the reason the Good Behavior and Appointments Clauses are best understood to deny Congress the power to modify life tenure by statute, in this view, is to protect the structural principle of judicial independence that underwrites Article III of the Constitution.
Proponents of the Junior/Senior Justice proposal believe that Congress may redefine the office prospectively. Thus, for all new appointments made after the statute takes effect, the office of Justice of the Supreme Court would mean serving as a Junior Justice for the first eighteen years and serving as a Senior Justice thereafter. All Justices would have the same duties and powers, but the nature of these duties would change over time. Under this approach, every Justice, unless they retire, would eventually become a Senior Justice if they stay on the Court for more than eighteen years. Note that under the terms of this argument, the statutory changes would not apply to sitting Justices.
The debate hinges on the nature of the “office” of Justice of the Supreme Court that the Constitution creates and whether a statute that contemplates that the Justices’ duties will change after eighteen years removes them from that office in violation of the Good Behavior Clause. Proponents, relying on the senior status statute, 28 U.S.C. § 371(b) and (e), conclude that a change in duties does not necessarily involve a change in office because senior status judges still hold their office. For the same reason, they believe that deciding cases is not
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