The framers of the Massachusetts Constitution believed fair judicial decisions required that judges be removed from politics. And so the constitution provides that, after their nomination by the governor and approval by the governor’s council, state judges enjoy tenure until age seventy. This method of judicial retention served as a model for the federal system. Today, however, Massachusetts is an outlier among the states, the majority of which require judges to stand for periodic election or review. In April, the Massachusetts Committee on the Judiciary rejected another effort to impose term limits on judges. The Committee was right to do so, and it’s worth considering why. 

The measure the Committee rejected proposed amending the state constitution to provide that judges be reviewed every seven years by the governor’s council. In an interview with The Lowell Sun, the author of the “Proposal for a Legislative Amendment to the Constitution Relative to the Term of Judicial Officers,” Representative Tom Golden, stated that the goal was judicial accountability, particularly for those judges “who consistently make poor legal decisions.” 

There are two problems with this justification. First, it is far from clear that there ever could be universal agreement – or even agreement among the members of the Governor’s Council – as to the definition of a “poor legal decision.” It is a fact that, in every civil and criminal case, one party is bound to be disappointed by some judicial ruling, whether it concerned scheduling, procedural matters, or the admissibility of evidence—not to mention the end result. In other words, decrying a “poor legal decision” is in many instances another way of saying you simply do not agree with that particular decision. 

This is not to say that judges are infallible, or that no judicial decision can be deemed objectively wrong. But this leads to the second problem with the proposal: the notion that the only effective form of accountability is one that involves the democratic removal of constitutional officers from their posts.  

In the Sun interview, Representative Golden noted, correctly, that when elected officials continue to make poor decisions, “there’s a remedy.” While this is true as far as it goes, it assumes the kinds of decisions elected officials make are the same as those made by judges. But the former are elected to represent their constituents in making policy for a community—for a town, a city, or the state itself. The majority of these decisions involve the exercise of discretion, presumably guided by the preferences of constituents. 

Judges, by contrast, do not make the same policy decisions and their discretion is comparatively bounded. Day-in and day-out, their mandate is to construe and apply the law, even when the law is maddeningly vague. In doing so, they are guided by the text of the law, precedent and, not least, the arguments of lawyers representing each side—resources that tend to cabin the range of possible determinations they might reach. 

Because the nature of judicial decision-making is fundamentally different from political decision-making, the accountability mechanisms are different as well. The primary mechanism is the appellate process: when one side in a case believes a decision erroneous, that decision may be subjected to multiple layers of review by higher courts, an institutional error-correction mechanism that has no equivalent in the other branches of government.  

Apart from the actual decisions they make, Massachusetts judges can seek counsel from the Judicial Ethics Commission about their conduct off the bench, and be investigated by the Judicial Conduct Commission for their conduct on the bench. Like elected officials, judicial decisions and conduct may be the subject to media scrutiny that compels the judiciary to address institutional concerns. And, like their counterparts in the Legislature and executive branch, judges are not immune from the criminal law. Finally, and not least, the Massachusetts Constitution establishes a democratic check on the members of the judiciary, allowing for the removal of judges by the governor, with the consent of the council, for a variety of reasons, including advanced age or mental or physical disability. 

In other words, it is not accurate to say that Massachusetts judges are free to do as they like in their official capacities. Rather, they are held accountable for their decisions and conduct through mechanisms adapted to the particular role the Massachusetts constitution envisions for the Commonwealth’s judges. As the framers put it in Article 29, judicial tenure serves nothing less than to honor “the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.”  

Lawrence Friedman teaches constitutional law and state constitutional law at New England Law- Boston.