Judicial Disability and the Good Behavior Clause

Justice Douglas\u27s retirement ended months of speculation about his health and ability to remain on the Court. Coming at the end of a decade during which the fitness of judges was increasingly examined, his illness stimulated renewed consideration of judicial disability. Numerous remedies have been suggested. Two examples of such proposals in the present Congress are S. 1110 and H.R. 10439. S. 1110 would establish a Council on Judicial Tenure composed of judges in regular active service. The proposed Council would receive complaints about judges, conduct investigations, and report to the Judicial Conference of the United States. If a report recommended removal, the Council would present the evidence to a committee of the Conference. The Conference, or its committee, would have the power to order the censure, removal, or involuntary retirement of any judge or Justice of the United States. The proposed legislation is premised on the theory that the Constitution, and in particular the good behavior clause, permits the removal of disabled judges. This Note focuses on the good behavior clause and argues that the Constitution does not allow the removal of Justices or judges for disability and that no provision should be made for the replacement of a disabled Supreme Court Justice