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The time has come to decide whether life tenure for federal judges in the late 20th Century is but an anachronism.


The establishment of specific terms of office for federal judges would not result in any lessening of judicial independence, it would merely bring the Judiciary into the same democratic framework as the other two branches. The Commonwealth of Virginia, along with eleven other states, utilizes a form of appointment; this system has worked well in Viriginia since 1870. Even though elected by the General Assembly, the Virginia Supreme Court has never hesitated to assert its independence and has exercised its long established power to strike down legislative enactments. Personal information furnished by the Executive Secretary of the Supreme Court of Virginia reveals that in no case has a justice of the Virginia court been denied a second 12-year term after he had once been elected by the legislature.


This would indicate that Justice Story's fears that judges who held fixed terms of office would not be "found firm enough to resist the will of those who appoint them," were without foundation.&

The proposal to end life tenure is not a radical departure from the American tradition; it is well within that tradition. There are, of course, those who have characterized every extension of democratic ideals as "radical," just as there were some who viewed freedom for the slaves and the direct election of senators in that vein.

It is inconceivable today that this remnant of a monarchial system should be allowed to stand unchallenged. Referring to the Tydings proposal on Judicial removal, Professor Kurland stated in conclusion:

I should favor treatment of the alleged problems of judicial tenure by constitutional amendment...

"... We have here, instead, a proposal to effect a change in the structure of government that most people would, with some reason, regard as a fundamental revision of our constitutional system. If a case can be made for it, I can see no reason for failing to take the issue to the people.

"It should be kept in mind that the provisions for securing the independence of the judiciary were not created for the benefit of the judges, but for the benefit of the judged. It is not in the keeping of the judges to surrender this independence under pressure or voluntarily to give it away. Judicial independence is held in trust for the people and only they should determine whether they would like to exchange some judicial independence for more judicial efficiency." 63

His words are equally applicable to the proposal to limit the terms of federal judges.


As noted above, the advocates of the Constitution favored life tenure for the federal judiciary for a number of historic reasons. They also favored it because they believed the Judiciary needed insulation and protection. The Federalist, No. 78, by Hamilton, is often cited to buttress the argument that no enlargement of the accountability of the Judiciary should be made. A detailed perusal of Hamilton's reasoning would indicate that his premises have been eroded by time and the antics of extreme judicial activism.


The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.


". . . It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attach with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the executive. For I agree that 'there is no liberty if the power of judging be not separated from the legislative and executive powers.' And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to

60 L.R.S. material on State judges; Election by legislature: Conn., S.C., Va., Vt. Appointed by executive: Alaska, Colo., Del., Ha., Ia., Me.

61 Commonwealth v. Caton, 4 Call. (8 Va.) 5 (1782).

62 3 Story, supra, § 1614.

63 Kurland, supra at 697-98.

fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and in a great measure, as the citadel of the public justice and the public security." (emphasis added)


How surprised Hamilton might be today were he to see the frequent use of sweeping injunctions by federal district judges. Could Hamilton have been wrong in his statement that the Judiciary could never attack the other two branches? In what light would the champion of executive power have viewed the Steel Seizure case? 5 What would his reaction have been to the Courts assuming jurisdiction over the right of the House of Representatives to police itself? 66

Hamilton was prescient in his view that the people can never be endangered as long as the Judiciary remains distinct from the executive and the legislature. It is precisely this that the Court has failed to do in the last several decades. Though John Marshall and Justice Story were often accused of boundless activism, the Courts by and large were circumspect during their first century. The beginnings of the descent from the lofty pedestal of Constitutional law into the arena of everyday politics and sociology began in full with Lochner v. N.Y. in 1905.

Having discovered that the Fourteenth Amendment was so vague as to the adaptable to almost any situation, the Court struck down a N.Y. labor protection law. Lashing out at the renaissance of natural law which he was later to describe as the "brooding omnipresence in the sky," Mr. Justice Holmes stated in dissent: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."

99 67

In an earlier case, he had stated:

"While the courts must exercise a judgment of their own, it by not means is true that every law is void which may seem to the judges who pass upon it, excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree." 68

The dissents of Stone, Cardozo, Brandeis, J.J. and Hughes, C.J., echoed these sentiments in the 1930's when a conservative 5-4 majority stymied the New Deal. Though the cast had changed by the 1950's, novel interpretation of the Fourtenth Amendment still drew the wrath of individual justices. The late Justice Jackson stated:


"Today it [the XIV Amendment] is being used not to restrain state legislatures but to set aside the acts of state courts, particularly in criminal matters . . . I believe we are unjustifiably invading the rights of the states by expanding the constitutional concept of due process to include the idea that the error of a trial court deprives it of ‘jurisdiction,' by including in the concept by interpretation all other constitutional provisions not literally incorporated in the Fourteenth Amendment, and in the alternative, by incorporating into it all of our ideas of decency, even to the point of making a constitutional issue of rulings upon evidence." 69

The imposition of Federal common law in criminal cases, by way of the Fourteenth Amendment, was denounced by Frankfurter, J. in Hysler v. Florida: 7 "Vindication of constitutional rights under the due process clause does not demand uniformity of procedure by the 48 states. Each state is free to devise its own way of securing essential justice in these situations."

99 71

One of the most remarkable pieces of constitutional gerrymandering has been the total victory of the "incorporation" doctrine. When faced with vexatious situations, the Court in recent years has proceeded to apply the Bill of Rights to the States via the Fourteenth Amendment. Thus did Mr. Justice Cardozo's opinion in Palko v. Connecticut 2 fall in Benton v. Maryland.73


es The Federalist, No. 78.

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Powell v. McCormack, 395 U.S. 486 (1969).

67 198 U.S. 45, 75 (Holmes. J. dissenting).

68 Otis v. Parker, 187 U.S. 606 (1903).

69 R. Jackson, supra at 69-70.

70 315 U.S. 411 (1942).

71 Ibid. at 416-17.

72 302 U.S. 319 (1937).

73 395 U.S. 784 (1969).

This trend prompted Mr. Justice Frankfurter to point out that during the previous 70 years of the existence of the Fourteenth Amendment, no one had ever suggested that it incorporated the entire Bill of Rights."

In disagreeing with the Court's tactics in this area, one need not be placed on the side of those who would advocate denial of counsel, illegal searches and seizures, and coerced confessions. The fact remains that a major revolution in American law has occurred and the perpetrators of this event are beyond the public reach.

The Court in its earlier years embodied the doctrine of judicial restraint to a remarkable degree. Not until the late 1950's did the Court completely abandon its assigned sphere.

To protect itself and the other branches of government the Court refused to pass on political questions; it deferred to state common law principles; it refused to enunciate Constitutional rulings, unless absolutely necessary; it refused to rule upon moot questions; it deferred to a state's interpretation of its own constitution and statutes; and it strictly interpreted the rules concerning "standing" to bring a lawsuit.

Chief Justice Taney, in refusing to embroil the Court in Rhode Island's civil disturbances, established the doctrine of avoidance of political questions. He stated:

"This tribunal . . . therefore should be the last to overstep the boundaries which limit its own jurisdiction, and while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums."

99 75


In Coleman v. Miller, the transition Court of 1939 reaffirmed the wisdom of Taney.

In that case the state of Kansas had ratified the child labor amendment after rejecting it 13 years earlier. Faced with the questions of whether the Lt. Governor of Kansas could vote to break a tie, the effect of the earlier rejection, and the effect of the lapse of time, the Court in varied opinions including those of Chief Justice Hughes and Justice Black, held that the amending of the Constitution was a concern of Congress alone. The matter was a political question.

Harking back to Justice John Jay's refusal to render advisory opinions for George Washington, and disagreeing on the question of the standing of the plaintiff-legislators, Frankfurter, J. said:

"It is not our function, and it is beyond our power, to write legal essays or to give legal opinions, however solemnly requested and however great the national emergency. ... No matter how seriously infringment of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to us all." "

Citing examples of the Court's refusal to involve itself in political questions such as the duration of a state of war, the abrogation of treaties, recognition of foreign governments, and redistricting; Mr. Justice Jackson commented shortly before his death in 1954:

"Of course it would be nice if there were some authority to make everybody do the things we ought to have done and leave undone the things we ought not to have done. But are the courts the appropriate catch-all into which every such problem should be tossed? One can answer 'yes' if some immediate political purpose overshadows concern for the judicial institution. But in most such cases interference by the Court would take it into matters in which it lacks special competence, let alone machinery of implementation.

"I have said that in these matters the Court must respect the limitations on its own powers because judicial usurpation is no more justifiable and no more promising of nermanent good to the country than any other kind."

99 78

Now that the federal courts have cast aside the warnings of Taney, Hughes, Frankfurter and Jackson, and have taken it upon themselves to supervise the details of redistricting in every electoral jurisdiction in the country, it might be well to consider the words of Mr. Justice Frankfurter as he blocked a divided Court's entry into the "political thicket."

74 Adamson v. California, 332 U.S. 45, 57 (1957) (Concurring opinion). 75 Luther v. Rorden, 7 How. (48 U.S.) 3, 47 (1849).

76 307 U.S. 433.

77 Thid, at 462. 464.

78 R. Jackson, supra at 55, 61.

"The Court has left the performance of many duties in our government scheme to depend on the fidelity to the executive and legislative action, and ultimately, on the vigilance of the people in exercising their political rights." "

Sixteen years later, in dissent, Frankfurter, warning of the problems about to be spawned by Baker v. Carr, stated:

"The court's authority-possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanctions." 80

Had Mr. Justice Frankfurter's views on judicial self-restraint been adhered to, much of the criticism of the recent Court would have been precluded.

Now the federal system is strained by the Judiciary's usurpation of legislative power in cases such as the recent Virginia affair where a federal panel actually redistricted the legislature of its own motion.1

Coupled with the enormous growth of the executive power and the irresponsibility of the Congress, the Courts have all but emasculated the role of the states. Even in civil cases, the common law of the states has given way to bootstrap adaptation of a quasi-federal common law, as in New York Times v. Sullivan.82 Contrast this with the late blooming, but sound, doctrine of Erie R.R. v. Tompkins, in which the Court held that state, not federal, law would be applied in federal diversity suits. There Brandeis, J. issued a reasoned defense of states' rights and responsibilities:

"The Constitution of the United States . . . recognizes and preserves the autonomy and independence of the States-independence in their legislative and independencce in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the States, and, to that extent, a denial of its independence." 83 One of the most spectacular forms of the judicial evolution has been in the realm of criminal law. In Miranda v. Arizona 8 the Court cast aside ageless precedent and ruled that a re-examination of the Constitution revealed that police must engage in a question and answer session with each suspect before an ensuing confession can be accepted. No longer would voluntariness be the test of a confession's validity.85

In 1963, the case of Fay v. Noia, 372 U.S. 391, opened the door for a flood of habeas corpus petitions from state prisoners. Harlan, J. noted that this reversed the entire body of federal law which had held that any independent state ground for conviction was sufficient to insulate a decision from federal collateral attack. The ensuing wave of petitions has borne out the dire predictions of the dissenters.88

The result of this case has been the subjection of nearly every state conviction to federal review, despite the fact that criminal law was left by the Constitution to the exclusive province of the States.

Again the words of Justice Jackson are appropos :

... When the state courts render harsh or unconsidered judgments, they invite this power to be used. But I think in the long run the transgressions of liberty by the Federal Government, with its all-powerful organization, are much more to be feared than those of the several states, which have a greater capacity for self-correction." 87

In the realm of search and seizure, the Court completely broke with precedent. The late Mr. Justice Black, long a spokesman for certain forms of incorporation of the Bill of Rights, drew the line at this point and steadfastly refused to retreat from his position that the Constitution prohibits only "unreasonable" searches, not all searches in which there might be doubtful probable cause.

Condemning the newly fashioned rule of exclusion of illegally obtained evidence, he said:

79 Colegrove v. Green, 328 U.S. 549, 556 (1946).

80 369 U.S. 186, 267 (1962) (Frankfurter, J. dissenting).

81 Howell v. Mahan, 330 F. Supp. 1138 (E.D. Va. 1971); cert. granted

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82 376 U.S. 254 (1962).

83 304 U.S. 64, 78-79 (1938).

84 384 U.S. 436 (1966).

85 But see P.L. 90-351, 18 U.S.C. § 3501 (Omnibus Crime Control and Safe Streets Act of 1968) which re-establishes the voluntariness test in federal cases only.

88392 U.S. at 448 (Harlan, Clark, Stewart, J.J. dissenting); In 1941 there were 127 habeas corpus petitions filed by state prisoners; in 1961 there were 906; in 1962 there were 1232; and in 1970, there were 9063.

87 R. Jackson, supra at 86.

"But the Constitution does not give this court any general authority to require exclusion of all evidence that this court considers improperly obtained or that this court considers insufficiently reliable.

"It has become fashionable to talk of the court's power to hold governmental laws and practices unconstitutional whenever this court believes them to be ‘unfair' contrary to basic standards of decency, implicit in ordered liberty, or offensive to those canons of decency and fairness which express the notions of justice of English-speaking people' all of these different general and indefinable words or phrases are the fruit of the same, what I consider to be poisonous, tree, namely the doctrine that this court has power to make its own ideas of fairness, decency and so forth, enforceable as though they were constitutional precept.” 88

The concept of stare decisis has passed into history along with the Tenth Amendment as far as criminal law is concerned.

These illustrations constitute only a small part of the new doctrines which have revolutionized the process of criminal law. The Court has accomplished this by itself and has had to answer to no one for the result. The startling fact remains that many of these key decisions were by 5-4 votes.

Little need be said of the current upheaval brought about by the decision in Green v. New York County Board of Education, 391 U.S. 430 (1968), in which the Court found that local government had an affirmative duty to integrate public schools, and Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), in which the laws passed by Congress were found to be subservient to some mysterious equity power emanating from the Fourteenth Amendment. The Court has injected itself into one of the most emotional of public issues, and unless it can retreat to the wiser era of neutrality, its reputation will continue to suffer.

The absolute impossibility of judges, who are accountable to practically no one, attempting to dictate bus schedules for schoolchildren, should be manifest. The danger of public uprising against the Court on this issue alone should not be understated. The recent defeat by one vote of the Dole-Griffin amendment, which would have removed the Court's appellate jurisdiction over school cases, should be ample warning.


Contrast the sweeping approach of the Court in the last decade to the wellreasoned caution expressed by Mr. Justice Brandeis thirty-seven years ago:

"1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding. . . . It was never the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act....

"The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.'.

"3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is applied."..

"4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of...

"5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. . . ." 90

If the Court's pronouncements in social fields are not curtailed, it is essential that the Judiciary be granted a broader base of support. An increase in its accountability to the people would accomplish this result. The Framers of the Constitution never envisioned that the Judiciary would become a quasi-legislature ; if they had, they would never have insulated the Courts to such an extent.

Recent public opinion surveys indicate that the federal judiciary is at one of its periodic nadirs."

The role of the federal judiciary is being questioned as never before. There is no single issue prompting this move on the part of the public, though compulsory busing has been the latest trigger device.

The Constitution has not changed; the Courts have. The time has come to consider a change in the Constitution to parallel the change of the federal judiciary.

No one has ever suggested that the courts of the states are of inferior ability; the demise of respect for state courts has been due only to the aggrandizement of the federal courts. The state courts operate under a term of years concept

88 Foster v. California, 394 U.S. 440, 449 (1968).

89 118 Cong. Rec. 3029 (92nd Cong. 2nd Sess. Mar. 1, 1972).

90 Ashwander v. T.V.A., 297 U.S. 288, 346-47 (1935) (Brandeis concurring).

91 See gen., Miller: Public Confidence in the Judiciary, Some Notes and Reflections, 35 Law and Contemporary Problems, 78-79 (1970).

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