Steven Douglas Smith

How to Remove a Federal Judge

Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitutions grant of good behavior tenure is an implicit reference to impeachment. This article challenges these widely shared assumptions. Using evidence from England, the colonies, and the revolutionary state constitutions, the article demonstrates that at the time of the founding good behavior tenure and impeachment had only the most tenuous of relationships. Good behavior, when discussed in the context of the government, consisted of a tenure in office whereby the officer would forfeit her office upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good behavior tenure had forfeited her office by reason of misbehavior. Most state constitutions did not equate good behavior tenure with impeachment either. Indeed, some distinguished them explicitly. Compared to prior scholarship on good behavior tenure, this article provides a more complete, and therefore more credible, understanding of good behavior tenure. In particular, we demonstrate several propositions for the first time: 1) that the English understanding of good behavior tenure had migrated to her colonies and continued in independent America; 2) that good behavior tenure was not limited to government officials but could be granted to anyone, including tenants in land, licensees, and employees; 3) that the English writ of scire facias was not the only mechanism for ousting those with good behavior tenure; and 4) that the state constitutions generally did not regard impeachment as a means of judging good behavior. Taken together, these propositions devastate the conventional conflation of good behavior tenure with impeachment.

Judicial Activism and “Reason”

Although judicial decisions in an “activist” vein are often held out as a manifestation of “reason” in governance, upon closer inspection they are sometimes more like the opposite of “reason,” consisting of poorly supported accusations of hatred or animus against the supporters of the measures that the courts choose to invalidate. This essay discusses how judicial discourse can degenerate into this sort of denigration. In world of advanced moral pluralism, one of the few normative propositions that most people can agree on is that it is wrong to act on the basis of hatred or malevolence. Consequently, arguments on controversial issues in the public square increasingly resort to accusations of bigotry or hatred against an advocate’s opponents. And when courts go beyond the conventional resources of legal text and precedent, they naturally resort to the same kind of rhetoric. The American Supreme Court’s recent decision in United States v. Windsor is a cogent example of this unfortunate trend.

Die and Let Live? the Asymmetry of Accommodation

In culture war battles over same-sex marriage, one group of scholars (“the moderators”) offers what is held out as a “live and let live” truce: same-sex marriage would be legalized, qualified by exemptions to protect groups and individuals who oppose same-sex marriage on religious grounds against liability or legal sanctions. The appeal of this proposal lies in part in its implicit claim to symmetry. The compromise– namely, same-sex marriage with religious exemptions-- is said to respect the legitimate interests of each side. Consequently, the moderators view both religious conservatives and secular egalitarians who decline to embrace the compromise as intransigent, and as unreasonably attempting to “impose their values” on others. This essay criticizes the moderators’ implicit claim of symmetry. In fact, neither rejection of same-sex marriage nor legalization qualified by exemptions is equally respectful of each side’s interests. Both sides understand this fact, and they understand that it is better to be in a position of granting accommodation than to be in need of accommodation. In addition, the parties face different risks if they find themselves in a politically subordinate position and hence in need of accommodation. The final section of the essay considers the likelihood that either party, if politically dominant, will be inclined to accommodate the other party. While emphasizing that the question is inherently speculative, the essay argues (contrary to much academic opinion) that Christian conservatives have both the intellectual resources and the historical experience to support an attitude of tolerance. Whether secular egalitarianism has these toleration-supportive ingredients is more uncertain.

Religious Symbols and Secular Government

That a “secular” government should not sponsor religious expressions may seem almost like an analytic truth. And yet in practice, liberal democratic governments often support religious symbols and expressions. So, are governments that purport to be secular and yet support religious symbols or expressions just being hypocritical, or incoherent? This essay, written for a conference on “Freedom from Religion” held in Tel Aviv in December 2011, considers three different versions of secularity – what I call the “classical,” “comprehensive,” and “agnostic” versions – and concludes that none of these versions forbids religious expressions by “secular” governments.

Freedom of Religion or Freedom of the Church

This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church - both the institutional church and the inner church - came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.

Reply: (Mis)Understanding Good-Behavior Tenure

In How To Remove a Federal Judge, we argued that at the Founding, “good behavior” was a term of art referring to a generic tenure that could be granted to anybody with respect to any item that might be held (e.g., jobs, licenses, land). For centuries, this process of judging whether someone with good -behavior tenure had misbehaved occurred in ordinary trials outside of the impeachment process. Given this background, if impeachment was to serve as the sole means of judging misbehavior, a constitution would have to expressly provide as much precisely because it was an unusual departure from prior practice. Our Constitution lacks any hint that it makes impeachment the sole means of judging misbehavior, leading us to conclude that the Constitution, as originally understood, permitted removal of misbehaving judges by means other than impeachment, i.e., the traditional judicial process of ordinary trials. In his response to our article, Professor Martin Redish ably defends the orthodox view. He contends that we are mistaken on two levels—on the clause-oriented level of what “good behavior” meant and also on the more “holistic” level of the overall constitutional design.We are honored that Redish has carefully scrutinized our article — and also heartened. If our position is mistaken, a scholar of his stature and undoubted expertise in this field would surely be able to point out its errors.While Redish does indeed raise important objections, we believe our interpretation survives his objections; it remains demonstrably the most plausible reading of what “good behavior” meant at the Founding.