Origins of Judicial Independence
507
and administrative expenses shall be, what their duties shall be, and
most importantly, what powers they shall exercise. Congress even has a
voice in who shall be appointed to these courts and has sole authority in
deciding who shall be removed.
With respect to the number of Federal judges we shall have, and what
their qualifications shall be, the Constitution is silent. We know only that
there must be a Supreme Court, because it is named in Article III, and
that we must have a Chief Justice, because he is specifically mentioned in
Article I, Section 3 as the officer who must preside over the impeachment
trial of the President. During the course of American history, Congress
has authorized as few as five and as many as ten Justices of the Supreme
Court. For more than a century the number has remained constant at
nine, including the Chief Justice. Today, the number of inferior Federal
judges, also determined by statute, exceeds 700.
To protect the independence of the judges, Article III, Section 1 further
provides that they shall serve during good behavior, and that Congress
may not reduce their salaries while they are in office. The term ‘‘good behavior,’’ inherited from the English Constitution, means—in practical
terms—for life or as long as the judge wishes to serve since Federal
judges have been removed from office only through the impeachment
process. Although a number of inferior Federal judges have been impeached and convicted—the most recent being in 1986—no member of
the Supreme Court has ever been removed by this method. Justice Samuel Chase was impeached in 1805, but the Senate failed to convict. However, at least one member of the Supreme Court—Justice Abe Fortas—
resigned rather than face impeachment proceedings.
On what grounds may a Federal judge be impeached? The Constitution is not clear on this point. On the one hand, Article II, Section 4 states
that ‘‘all civil officers’’ may be removed if they are impeached and convicted of treason, bribery, or other high crimes and misdemeanors. S