Question

Why do federal judges have lifetime tenure? Is that a good idea? Why or why not?

Answer 1

In England, the king appointed judges and could remove them at will, so judges had strong incentives to issue rulings that pleased the king to keep their jobs.

The Framers of the Constitution instead wanted an independent judiciary able to act as a buffer against an oppressive legislature or executive. As Alexander Hamilton argued in Federalist 78, the Framers granted federal judges life tenure to protect them from undue political influence: “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.”

Life tenure is intended to allow judges to issue rulings that go against the majority or ruling elite without fear of retribution. And these protections are necessary: Federal judges routinely rule on the most important and controversial issues of the day and consider whether state and federal laws are constitutional, raising claims of “countermajoritarian” behavior by scholars and politicians alike.

Public criticism of judicial decisions is also nothing new: Newly inaugurated President Thomas Jefferson vehemently derided the 1803 case Marbury v. Madison, perhaps the most consequential Supreme Court decision, which ultimately established the power of judicial review, or the ability of courts to strike down laws as unconstitutional. Jefferson even tried to block the court from ruling on the case by canceling the court’s June 1802 term.

President Barack Obama famously criticized the justices of the Supreme Court for their ruling in Citizens United v. FEC while they sat silently at the 2010 State of the Union.

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