The recent and not altogether surprising revelation that Supreme Court Justice Clarence Thomas has for years accepted luxury travel accommodations paid for by a prominent Republican donor — Thomas and his wife, Ginni, a right-wing activist and pro-Trump zealot, apparently do not spend their entire vacation in an RV — has once again prompted calls for reform of America's highest court. Thomas's evident disdain for ethical standards, which includes his blithe attitude toward his wife's activism, has contributed to the Supreme Court's steadily declining approval ratings. To critics, this is simply another example of the court's commitment to a partisan agenda rather than the dispassionate interpretation of the law.
Given that Justice Thomas can act with impunity — impeachment, the only constitutional method for removing a Supreme Court justice, has become an empty threat — his behavior is likely to renew the notion of imposing term limits for the justices. The benefits are obvious. Not only would term limits ensure a periodic shift in the Court's makeup and likely its philosophical orientation, they would also remove the incentive to nominate only men or women young enough to serve for almost half a century. Thomas was 43 when he joined the court in 1991. Amy Coney Barrett was 48 when nominated by Trump in 2020. John Roberts became chief justice in 2005 at age 50.
The problem with enacting term limits, however, is the widespread belief that a constitutional amendment would be required. Article III of the Constitution mandates that judges "serve during good behaviour." That ambiguous phrase, according to most scholars and just about every judge, is the equivalent of "for life," because the delegates to the Constitutional Convention supposedly understood those terms to be interchangeable.
Robert Peck, for example, the founder and president of the Center for Constitutional Litigation, has said, "Everyone agrees that [term limits] would be unconstitutional. That limits the tenure of a Supreme Court judge that is set by the Constitution for good behavior, which has always been interpreted as lifetime tenure." Charles Cooke, writing in the National Review, insists that "the term 'good behavior' says what it means and means what it says. The judge may serve so long as he or she does nothing impeachable." For evidence, Cooke cites Alexander Hamilton, who wrote in Federalist 78, "The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government."
In fact, not every scholar believes term limits would be unconstitutional. Nowhere is this more evident than in the report of the Presidential Commission on the Supreme Court of the United States, in which "Members of the Commission [were] divided about whether Congress has the power under the Constitution to create the equivalent of term limits by statute." The commission's three tentative proposals, however, as well as others that propose a legislative solution, provide no hard evidence for their point of view, but rather rely on semantic interpretations of Article III that attempt to find holes in the wording.
Those who postulate equivalency — that is, a lifetime appointment, absent impeachment — are unmoved. They insist that there is nothing in the Constitutional Convention's debates about the judiciary to indicate otherwise.
In this, they are correct.
But they are looking in the wrong place.
There is indeed evidence that the men who drafted the Constitution saw a distinct difference in the two phrases, which makes congressional imposition of term limits not only constitutional, but likely advisable. For example, during a debate on the term of the executive, George Mason, one of the most influential delegates, warned that he "considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary Monarchy." In another debate about the term of the executive, delegate Rufus King wrote that James Madison "proposed good behaviour, or Seven years with exclusion forever afterward." Madison could in no way have meant "life" as the alternative to a hard limit of seven years.
Then there is Alexander Hamilton. In his six-hour speech to the convention on June 18, 1787, he reportedly said, "Let one branch of the Legislature hold their places for life or at least during good-behaviour. Let the Executive also be for life" — a clear indication that he saw those terms differently.
What position Hamilton later took in Federalist 78 is neither clear nor relevant. The Federalist essays are not even-handed discussions of constitutional issues, but advocacy pieces with a very definite slant and a distinctly weighted point of view, one that in literary studies could be termed an "unreliable narrator."
When Hamilton solicited Madison and John Jay to help him draft the essays, it was because the opponents of the new Constitution in New York were among the most powerful figures in the state and were determined to prevent its ratification. One of them, likely Robert Yates, writing as "Brutus" — meaning not the assassin of Julius Caesar but the 6th century B.C. Roman consul who became one of the founders of the Roman republic — had begun a series of insightful, highly persuasive essays that Hamilton recognized as a threat that must be blunted.
As the National Constitution Center observes, "Brutus's essays were so incisive that they helped spur Alexander Hamilton to organize (and co-author) The Federalist Papers in response." Their aim, therefore, was not truth, but persuasion, and Hamilton's dissertation in Federalist 78 was firmly in the second category.
It stretches credibility to believe that delegates to the Constitutional Convention would have been willing to create one branch of government — the one they distrusted the most — that consisted of unelected, lifetime members with no checks on their authority or power.
In addition to Hamilton, Mason and Madison's pronouncements, there is also indirect evidence. For four long, hot months in Philadelphia, where, for secrecy, the windows were bolted shut, guards were posted at the door, and the temperature reached 90 degrees, sweltering delegates who did not know and often did not like one another wrangled to find a means of government that would provide some centralized authority without granting any branch sufficient power to wield despotic power over either the other branches or the states. It stretches credibility to believe that in the midst of this turmoil, the delegates would have been willing to create one branch of government — the one they distrusted the most, on the evidence — that consisted of unelected, lifetime members with no checks on their authority or power, short of impeachment, which was made intentionally impracticable.
What seems far more likely is that, to the delegates, "good behavior" actually meant "as long as the justices are not corrupt or get mixed up in politics." There were long discussions on whether judges could be removed from office by means other than impeachment, such as through an ordinary court proceeding or action by either the executive or the legislature. In the end, the delegates decided that the judiciary would lose its independence if good behavior were so weak a standard that Congress could ignore it. A motion made by Delaware's John Dickinson that "after the words 'good behavior' the words 'provided that they may be removed by the Executive on the application (by) the Senate and House of Representatives,'" received only one "aye" vote.
So while delegates clearly wished to grant federal judges protection from political vendettas, it is also clear they in no way meant that Congress and the president should give up all checks on the judicial branch. Term limits could and should be one of those checks.
