blogging Fed Courts 6: non-Article III courts — what is the value of the Article III protections, anyway?

Article III says that:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

There are three “shall”s in that little paragraph, which suggests that these conditions are mandatory — the judicial power shall be vested in some federal courts, and their judges shall have lifetime tenure and salary protection. Blam. Done.

Unfortunately, as we saw in the previous two posts, the seemingly absolute language of Article III has never been implemented in an absolute way. And just as the full “judicial power” has never actually been vested in the federal courts, so, too, it’s never been the case that everyone filling a judicial function in the federal system has lifetime tenure and salary protection.

First, officers of administrative agencies make what could be seen as judicial determinations all the time. For example, when an employee of the IRS determine that someone owes a tax, they are interpreting and applying the law to determine a legal outcome for a particular person. We clearly are not going to demand that every official whose job involves interpreting the law have the protections of Article III judges.

Second, since the very first Congress there have been what are known as “legislative courts” — actual courts, deciding cases between parties — which are formed under some source of authority other than Article III, and whose judges do not have the protections outlined in that article. Thus we should ask, at a minimum,

  • What is the purpose of the Art. III protections?
  • What is the source of Congress’s power to create these non-Art. III courts? And,
  • What are the limitations on those courts?

This post briefly addresses the first question.


The Article III protections for judges — again, life tenure and a salary that cannot be reduced — are intended to insulate the judiciary from political pressure, and more particularly pressure from Congress. Is that a good thing? Should the judiciary be off the leash, unaccountable to the people’s representatives? Do we want judges who aren’t restrained in some way by the public will? If you are philosophically inclined to see democracy as fundamentally majoritarian, of course, insulation from the political branches probably seems like a terrible plan. If you think the distinction between democracy and mob rule is the protection of unpopular minorities, of course, then having one branch of government relatively insulated from public sentiment seems like it might be a good idea. The country actually seems split on this question. Over half the states have either directly contested, partisan elections for judgeships or retention votes for appointed judges. Is that the better way? Among states, only Rhode Island appoints its high court judges for life. Why have the states abandoned or eschewed the practice if political insulation is such a grand idea?

Other, less philosophical arguments against life tenure can be adduced, but they basically boil down to two things: judges, like other people, can lose a step in old age; and because the stakes are so high for judicial appointments, the fight over judicial confirmations have gotten extremely nasty. The former may be a problem — though presidents are elected and serve short terms, and yet may also suffer frailties in office. It’s true, though, that presidents generally serve in mid-life — most take office at about the age Elena Kagan is now, and she’s the youngest justice. (There are four currently-sitting justices over the age of 70.) Is this problematic? The article linked at the top of this paragraph suggests that in the past the Court has been saddled with justices who became rigid in their old age or, worse, suffered debilitating mental illness and yet remained on the job. I don’t know what to say about that, except that it doesn’t seem to be too much of an issue at the moment. Scalia seems to have gotten harsher and less philosophically coherent over time, but is that aging, or just the effects of decades of sitting in the scalding acid bath that is being Antonin Scalia? Otherwise, the justices all seem sharp as ever.

What about the latter concern? Are we worse off because federal appointments are now a essentially a struggle to the death?

First, it should be noted that although filling lower federal judicial slots is currently a problem, Supreme Court nominees — assuming they are qualified for the office — are generally confirmed. The larger problem may be that they are confirmed, essentially, because nobody can pin a weird or unpopular opinion to them. The confirmation hearings for nominee Robert Bork in 1987, in which Senate Democrats shredded his retrograde beliefs about equal protection for the cameras, put all future presidents and would-be nominees on notice: no matter how qualified you are for the office, you must never express an idea out of the mainstream, or indeed any opinion about abortion or guns at all. The Borking of Bork was arbitrary in the extreme — although “moderate” Anthony Kennedy was eventually nominated in his stead, his nomination was preceded by that of Antonin Scalia, who doesn’t believe the 14th Amendment’s Equal Protection Clause prevents official discrimination against women, and followed by that of Clarence Thomas, who is still fighting to get the Slaughter-House Cases overturned. What made Bork different? Nothing, really — at worst, he shared the opinion of one of our current senators. But he made the misstep of making those opinions known publicly. So the lesson for lawyers who aspired to great heights seemed to be clear: whatever your wild, non-mainstream opinions are, keep them quiet until you’re in a position of power. Then let loose with the crazy. It’s not clear that judges who are able to do that are better judges; they may just be smoother dissemblers.

Yet, although it’s true that the stakes are objectively highest in nomination fights over the judiciary because of the insulation that life tenure provides, it’s not clear that that fact is driving much of the current crisis in federal nominations. After all, the President’s appointees for executive agency jobs are also going unfilled, and none of those positions has life tenure. Thus, much of the current problem with nominations is tied to Senate dysfunction and partisan acrimony generally, and not to the requirements of Article III particularly.

Furthermore, the Article III protections may attract a higher quality of judge. The federal judiciary is widely considered more capable and of a slightly higher caliber than the state judiciaries. Part of that may, ironically, be the filtering process of Senate confirmation: “colorful” judges are weeded out early in the nomination process, for both better and worse. Meanwhile, the promise of a lifetime appointment and relative independence seems to draw top-quality lawyers who could be making much more in private practice. And election of judges, in particular, seems to be linked with worse and less impartial administration of justice, because, surprise, judges are just as susceptible to the corrupting influence of campaign finance as everyone else.

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One Response to blogging Fed Courts 6: non-Article III courts — what is the value of the Article III protections, anyway?

  1. Pingback: blogging Fed Courts 7: non-Article III federal courts — theory and limitations | The Handsome Camel

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