Presidential Commission on the Supreme Court of the United States
is a decisionmaking body in which members participate and deliberate together, the ability to “participat[e] in substantially all the body’s final decisions” is a necessary constitutional feature of holding the office of “Judge[] of the supreme Court.”[73] Because the Junior/Senior Justice proposal eliminates the right to participate in the Court’s decisions after eighteen years, some think it marks a change in office that violates the Good Behavior Clause.
Commentators have also discussed an alternative understanding of what it means to be a “Judge[] of the supreme Court”: Instead of participating in substantially all of the Court’s final decisions, perhaps each Justice must be able to participate in an equal share of the Court’s work. There is a sense in which the Junior/Senior Justice proposal establishes equality among the Justices, because each Justice has the same powers for the same period of time. But even so, critics argue that “the proposal is not consistent with the Constitution’s idea of a term” (and with the prevailing view that the Good Behavior Clause prevents Congress from imposing straightforward term limits).[74] In the critics’ view, Congress cannot establish a time limit after which Justices lose the ability to participate equally in the Court’s decisions, even if all Justices are subject to the same time limit.
To the extent that the proponents’ argument rests on the precedential authority of Booth, critics believe that the precedent is limited. Booth involved the Compensation Clause of Article III and the issue was whether Congress could cut the pay of lower federal court judges who had voluntarily taken what we now call senior status. As permitted by a 1919 amendment to the Judicial Code, they had chosen to “retire … from regular active service on the bench” but had not “resign[ed] [their] office,”[75] and they continued to hear cases or perform other judicial duties. The Court held that Congress could not constitutionally reduce their compensation because they still remained in office and exercised federal judicial power. Thus, critics of statutory term limits argue, Booth only holds that when judges voluntarily take senior status, but continue to hear cases, Congress may not reduce their compensation under the Compensation Clause. According to critics, it does not follow that Congress can require life-tenured Supreme Court Justices to stop participating in the Supreme Court’s exercises of judicial power after eighteen years.[76]
Proponents argue that if judges who have elected senior status “[c]ontinu[e] in Office” within the meaning of the Compensation Clause, then a statute requiring judges to take senior status after eighteen years would not deprive them of their “Offices” within the meaning of the Good Behavior Clause. In the proponents’ view, moreover, Booth and subsequent established practice with respect to retired Justices foreclose the critics’ arguments about the essential nature of the offices of “Judges of the supreme Court.” According to proponents,
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