Fake Originalists' Frivolous Lies about Judges' Right to Life Tenure

It is long past time to kill that misconception

A favorite falsehood by fake originalists (including those on SCOTUS) is that federal judges have “life tenure” or “lifetime appointments” (essentially the right to employment for life). Nothing explicitly or implicitly in our Constitution supports that myth. Often, so-called originalists who assert such falsehoods are lying to us about our Constitution. An insightful way to illustrate their deceit is to contrast what they said about their imaginary right to “life tenure” with what they said about our very real right to decide how to live our own lives.

First, consider what they said in Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022):

“It is time to heed the Constitution.” “We begin by considering the critical question whether the Constitution, properly understood, confers a right.” “The Constitution makes no express reference to a [particular purported] right” and “therefore those who claim that [the Constitution] protects such a right must show,” i.e., prove, “that the right is somehow implicit in the constitutional text.” To prove a “right” is “implicit in the constitutional text,” we the people must prove “such right” is “deeply rooted in this Nation’s history and tradition,” “implicit in the concept of ordered liberty,” and “part of a broader entrenched right that is supported by other precedents.” With an impressive Wizard of Oz impression, a handful of purported public servants proclaimed: “We hold that” prior precedent securing a particular right “must be overruled” because “[t]he Constitution makes no reference to [such right ], and no such right is implicitly protected by any constitutional provision.”

Next, train those judges’ own Dobbs guns on their own purported right to “life tenure,” “lifetime appointment,” i.e., employment for life. Clearly, our “Constitution makes no express reference to” federal judges’ right to life tenure, lifetime appointment or employment for life. Clearly, such purported right is not “deeply rooted in this Nation’s history and tradition;” it is not “implicit in the concept of ordered liberty;” and it is not “part of a broader entrenched right that is supported by other precedents.”

Our Constitution (Article III) strongly and clearly emphasized that all federal “Judges,” i.e., “of the supreme [court] and [all] inferior Courts shall” (and may) “hold their Offices” only “during good Behaviour.” This particular principle was discussed repeatedly and in multiple respects during the debates over whether the people should ratify our Constitution. Such discussions are evidence of what the people actually did ratify. Such discussions are evidence of what the people (including Federalists and Antifederalists) understood our Constitution meant.

Some of the most obvious and emphatic statements were by Alexander Hamilton in The Federalist No. 78. Hamilton emphasized that some state “constitutions” already “established GOOD BEHAVIOR as the tenure of their judicial offices” and our Constitution “would have been inexcusably defective, if it had [failed to include] this important feature of good government.” “The standard of good behavior for the continuance in office of the judicial magistracy” was carefully (and repeatedly) chosen to be “one of the most valuable of the modern improvements in the practice of government.”

Hamilton also emphasized the crucial purposes for which the Constitution permitted judges to hold their offices during “good behavior.” An “inflexible and uniform adherence to the rights of the Constitution, and of individuals” is “indispensable in the courts of justice.” But “[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” Complying with and applying our Constitution is good behavior.

Our “courts of justice are” meant to be “bulwarks” under a “limited Constitution” to prevent any “encroachments” on our Constitution (including our rights) by any of our public servants or even by tyrannical groups of the people. An “independent spirit in the judges” is “essential to the faithful performance of” their “duty” to us and our Constitution. The “independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors” among groups of “the people themselves,” which “the arts of designing men, or the influence of particular conjunctures, sometimes disseminate” to bring about “dangerous innovations in the government, and serious oppressions of the minor party” (minority) “in the community.”

Hamilton also emphasized that judges are “servant[s]” or “representative[s]” of “the people.” We the People used our Constitution (Article III) to impose the “standard of good behavior” on judges as an “excellent barrier to the encroachments and oppressions of [all our] representative[s]” and “to secure a steady, upright, and impartial administration of the laws” by all our public servants.

Hamilton also emphasized a crucial truth about the concept of judicial review (i.e., judges ensuring the constitutionality of the conduct of legislative or executive branch officials). When judges perform that function (judicial review of the actions of employees of the other branches), they necessarily (merely) serve and preserve the sovereignty of the people over all public servants (including judges):

[Judicial review does not] suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges [(and all other public servants) must] be governed by the latter rather than the former.

Repeatedly, Hamilton and James Madison emphasized similar principles. Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.”  The Federalist No. 70 (Hamilton).  Having “courts composed of judges holding their offices” only “during good behavior” is a “powerful means” for ensuring “the excellences of republican government may be retained and its imperfections lessened or avoided.”  The Federalist No. 9 (Hamilton).  “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.”  The Federalist No. 39 (James Madison).  Only “judges” who “behave properly, will be secured in their places for life.”  The Federalist No. 79 (Hamilton).

In The Federalist No. 81 (Hamilton) also addressed a particular form of bad judicial behavior that is remarkably common among some SCOTUS justices: “judges” committing “deliberate usurpations” of “authority” that was not delegated to them by our Constitution. Hamilton also emphasized “the important constitutional check which the power of instituting impeachments” (by the House of Representatives) “and of determining upon them” (in a trial by the Senate) “would give to” Congress as “the means of punishing [the] presumption” of judges usurping powers that the Constitution did not give judges or courts (or to Congress, which creates all federal courts below SCOTUS).

In The Federalist No. 70 Hamilton also emphasized another crucial check on the power of judges (and their tenure in office) that the people, themselves, directly have the right and power to exercise. “The two greatest securities” that “the people” have “for the faithful exercise of any delegated power” are “the restraints” imposed by fear “of public opinion” and the public’s “opportunity of discovering with facility and clearness [any official] misconduct” to facilitate the “removal from office” or even “punishment” (criminally) of any federal official. As Amendment X emphasized, only limited “powers” were “delegated to the United States by the Constitution,” some “powers” were “prohibited” to “the States,” and all “powers” that were not “delegated” by “the people” to public servants in federal or state government were “reserved” to “the people.”

Even in 1774, the Continental Congress emphasized that “freedom of the press” was among Americans’ “great rights” because it served the “advancement of truth” and “diffusion of liberal sentiments on the administration of Government,” including so that “oppressive officers” can be “shamed or intimidated, into more honourable and just modes of conducting [public] affairs.” Near v. Minnesota, 283 U.S. 697, 717 (1931); Roth v. United States, 354 U.S. 476, 484 (1957); Thornhill v. Alabama, 310 U.S. 88, 102 (1940) (substituting “ashamed” for “shamed”).

Even more recently, SCOTUS emphasized that “the law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from” our “criticism” (or our Constitution) “than other persons or institutions.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978) (cleaned up). Our “speech cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.”

As a final step, consider what so-called originalists say about their own purported right to life tenure or employment for life. The most alarming (and deceitful) statements ever written by a current SCOTUS justice must include the following by Chief Justice Roberts in a concurring opinion in S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020): the “federal judiciary” simply “is not accountable to the people.”¹

The First Amendment, copious SCOTUS precedent thereunder, and even the parts of the Constitution addressing impeachment by representatives of the people in Congress emphatically say otherwise. The lie that federal judges are not accountable to the people is propped up by the lie that judges have “life tenure.”

Justice Kagan, in a dissenting opinion when Newsom returned to SCOTUS in S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021), reiterated Chief Justice Roberts’ misrepresentation that judges were “not accountable to the people.” She did so to underscore that “if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors.”

So Chief Justice Roberts (instead of correcting his prior misrepresentation) in his concurring opinion in the second Newsom decision further misrepresented that “judges” are “shielded by life tenure.” And he blamed Justice Kagan for that contention. His entire sentence was: “But the Constitution also entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life tenure [as Justice Kagan asserted in her dissenting opinion] but because they are.” But even Chief Justice Roberts’ larger conclusion was deceptive.

The Constitution does not uniquely entrust “the protection of the people’s rights to the Judiciary.” Of course, Article VI of our Constitution powerfully emphasized that our “Constitution” and federal “Laws” are “the supreme Law of the Land,” and then it immediately emphasized that all “Judges” are “bound thereby.” But immediately after the foregoing, our Constitution equally powerfully emphasized that all state and federal officials are “bound” to “support” our “Constitution.” All public servants must protect the rights of citizens, who are, after all, the sovereign people.

Earlier (in an opinion emphasizing the importance of our “confidence” in our courts and our judges in Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015)), Chief Justice Roberts deceitfully blamed Hamilton to purport to justify misrepresenting what our Constitution meant. Citing The Federalist No. 78, Chief Justice Roberts misrepresented that “Hamilton believed” that our Constitution provided for “appointing judges to positions with life tenure.” But, as addressed above, even in The Federalist No. 78, alone (and even more clearly in other parts of The Federalist Papers), Hamilton did not believe that judges did or should have any right to life tenure or employment for life.

Chief Justice Roberts and Justices Scalia and Thomas, in a dissenting opinion in Wellness Int'l Network, Ltd. v. Sharif, 575 U.S. 665 (2015), misrepresented that “life tenure” was a right that “Article III” somehow granted “judges.” This time, they blamed a purported “majority of the Court” (in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)) who purportedly somehow “determined that Article III required an adjudicator” to have “life tenure.”

In fact, the prior purported “majority” in Marathon comprised only four justices. Indeed, the very first facts that Marathon emphasized were the following: Justice Brennan “delivered” the “opinion” and he was “joined” by only Justices Marshall, Blackmun and Stevens. So the first time in Sharif that Chief Justice Roberts and Justices Scalia and Thomas misrepresented that “Article III” somehow granted “judges” the right of “life tenure,” they cited Marathon and (correctly) emphasized that was a mere “plurality opinion.”

Moreover, even the Marathon plurality did not misrepresent (or pretend) that they “determined that Article III required” federal judges to have the right to “life tenure.” In a manner that no decent judge or decent originalist would contend constituted a judicial “determination” (much less contend that it was consistent with our Constitution), four judges (merely) asserted a hasty conclusory characterization: “The ‘good Behaviour’ Clause guarantees that Art. III judges shall enjoy life tenure, subject only to removal by impeachment.” Even that characterization did not merely misrepresent (as many so-called originalists have subsequently) that judges have the right to life tenure. It stated the actual language of the Constitution, and it even acknowledged the potential for “removal” of “judges” by “impeachment” for “Behaviour” that is not “good.”

Despite all the facts, so-called originalists (including SCOTUS justices) have racked up (and continue to rack up) an alarming history of misrepresenting judges’ purported right to employment for life. On June 28, 2024, Justice Gorsuch in a rather insightful concurring opinion in Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) misrepresented that “the framers made a considered judgment” in “the Constitution’s design” to grant judges the right to “life tenure.”

In a dissent from a denial of certiorari in Gee v. Planned Parenthood of Gulf Coast, Inc., 139 S. Ct. 408 (2018), Justices Thomas, Alito and Gorsuch misrepresented, “The Framers” somehow “gave us lifetime tenure.” That opinion did at least correctly emphasize two crucial principles emphasized in The Federalist No. 78. First, the Framers sought to “promote” only “that independent spirit in the judges which” was “essential to the faithful performance” (by judges and courts) of their proper “role” (serving the sovereign people) as “bulwarks of a limited Constitution.” Second, judicial independence meant (and means) that judges must “rely on” absolutely “nothing” except “the Constitution and the laws.” That opinion also did at least correctly conclude with the following (regarding a different issue), “We are responsible for the confusion” and “it is our job to fix it.”

Justices Alito and Gorsuch, in a dissenting opinion in Ortiz v. United States, 585 U.S. 427 (2018) summarily misrepresented, “Under Article III of the Constitution,” federal “judges have life tenure.” Then, Justices Alito and Gorsuch (falsely) blamed “Congress” for creating “the Court of Claims” with “judges with life tenure” (which the justices further misrepresented was “as Article III requires”). In striking contrast, in the federal statute with which Congress created the “Court of Claims,” Congress faithfully emphasized that its “judges” are “to hold their offices during good behaviour” (as Article III actually required).

In a section bearing the caption “The Constitution” in a concurring opinion in Kisor v. Wilkie, 588 U.S. 558 (2019), in June 2019, Chief Justice Roberts vaguely represented that “the founders” somehow “gave federal judges life tenure, subject only to removal by impeachment.” Before that (in February 2019) in a “per curiam” opinion (written to speak for SCOTUS, including Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Kavanaugh), someone anonymously misrepresented that “federal judges are appointed for life.” Yovino v. Rizo, 586 U.S. 181 (2019).

The following year, in Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 590 U.S. 448 (2020), Chief Justice Roberts and Justices Alito, Gorsuch and Kavanaugh “joined” the “opinion of the Court” that was “delivered” by Justice Breyer. They misrepresented that “life tenure” was “mandated by Article III for federal judges.” This time, they (falsely) blamed Chief Justice Marshall for their misrepresentation. They cited American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546, 26 U.S. 511 (1828) (Marshall, C. J.).

In striking contrast, in American Insurance, Chief Justice Marshall clearly did not say anything at all about “life tenure.” Like Congress, above (in the statute at issue in Ortiz), Chief Justice Marshall faithfully stated the words of the Constitution, which is far more than has been done by so-called originalists claiming a right to “life tenure.” Chief Justice Marshall emphasized that the “Constitution” clearly “declares” that “the Judges both of the Supreme and inferior Courts, shall hold their offices during good behaviour.”

Even the famed and much-touted textualist Justice Scalia, in his own dissenting opinion in Morrison v. Olson, 487 U.S. 654 (1988), misrepresented that “the Constitution” somehow gave “us” judges “life tenure.” “Judges, after all, have life tenure,” Justice Scalia misrepresented. He did so in response to the following questions and statement (by Justice Scalia):

What if they are politically partisan, as judges have been known to be, and [they are] antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one.

We should not trust the word of any judge or any purported originalist who cavalierly misrepresents that the Constitution, or the Framers, or the Founders gave federal judges a right to life tenure, appointment for life or employment for life. That pretense is pernicious. It promotes the extremely pernicious pretense and perception that judges are accountable to no one except (maybe) other judges. All such pretenses are clearly contrary to the text, structure and purpose of our Constitution and copious writing about our Constitution.

Such pretenses and pretensions are contrary to common sense—ours and the Founders. Bernard Bailyn’s outstanding analysis of salient history of our Constitution (The Ideological Origins of the American Revolution) emphasized that the Founders and Framers had long seriously considered serious proposals to create a “nobility for life.” Again and again, such proposals were rejected precisely because they smacked of an unconstitutional and dangerous “aristocracy” (an order of people who are not accountable to the people). So our Constitution repeatedly emphasized that neither the federal government nor any state could confer any “Title of Nobility.” “Judge for Life” necessarily is a purely aristocratic (unconstitutional) title of nobility. Judges plainly do not and cannot have any right to lifetime employment, life tenure or appointment for life.

1. Chief Justice Roberts knew his contention was false. Even opinions in which he joined proved this point. In Citizens United v. FEC, 558 U.S. 310 (2010) SCOTUS (in an opinion in which Chief Justice Roberts and Justices Scalia, Thomas and Alito joined) emphasized that in our “republic” clearly “the people are sovereign” and “the ability” (the power) “of the citizenry to make informed choices” about public servants and public issues “is essential.” “Speech is an essential mechanism of democracy, for it is the means to hold officials” (even judges) “accountable to the people.”

The following year, Chief Justice Roberts emphasized the same point in his own opinion for the Court in Snyder v. Phelps, 562 U.S. 443 (2011). Under our Constitution “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” SCOTUS in Snyder re-emphasized the foregoing principle because “speech concerning public affairs” is “the essence of self-government.” For that, Chief Justice Roberts quoted a unanimous SCOTUS in Garrison v. Louisiana, 379 U. S. 64 (1964). Such statements are profoundly important because they flow from the sovereignty of the people over ourselves, as well as over our representatives in government (our self-government).

The year before Newsom (2020), in Gundy v. United States, 588 U.S. 128 (2019), Justices Gorsuch and Thomas and Chief Justice Roberts issued a dissenting opinion. They emphasized that they knew “the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice” about when and where “to vest” any “power” in any part of federal government. That is de facto and de jure exactly why the first sentences of Articles I, II and III expressly emphasize the “Powers” or “Power” that the people “vested in” Congress, the President and courts.

“And,” the Gundy dissenters added, “the separation of powers” is “about safeguarding a structure designed to protect” not only the sovereign people and “their liberties” as a collective, but also “minority rights, fair notice, and the rule of law.”

Our founding document begins by declaring that “We the People [did] ordain and establish this Constitution.” At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest [parts of] the authority [of the sovereign people] to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.

In Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015), Chief Justice Roberts and Justices Scalia, Thomas and Alito issued a dissenting opinion. They emphasized that the majority opinion had emphasized that the “animating principle” (the primary purpose) of our entire Constitution was to secure “popular sovereignty” (the sovereignty of the people over all public servants).