Reply: (Mis)Understanding Good-Behavior Tenure

11 Pages Posted: 23 Feb 2010

See all articles by Saikrishna Prakash

Saikrishna Prakash

University of Virginia School of Law

Steven Douglas Smith

University of San Diego School of Law

Date Written: 2006


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.

Keywords: good behavior, judicial independence, impeachment, holism, Redish, tenure

Suggested Citation

Prakash, Saikrishna and Smith, Steven Douglas, Reply: (Mis)Understanding Good-Behavior Tenure (2006). Yale Law Journal, Vol. 116, No. 159, 2006, Available at SSRN:

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Steven Douglas Smith

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

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