-
1
-
-
38849160789
-
-
WILLIAM BLACKSTONE, I COMMENTARIES 259-60 (1768),
-
WILLIAM BLACKSTONE, I COMMENTARIES 259-60 (1768),
-
-
-
-
2
-
-
38849117484
-
-
quoted in PHILIP B. KURLAND & RALPH LERNER, 4 THE FOUNDERS' CONSTITUTION 132 (1987) [hereinafter FOUNDERS' CONSTITUTION].
-
quoted in PHILIP B. KURLAND & RALPH LERNER, 4 THE FOUNDERS' CONSTITUTION 132 (1987) [hereinafter FOUNDERS' CONSTITUTION].
-
-
-
-
3
-
-
38849118141
-
-
DECLARATION OF INDEPENDENCE (U.S. 1776).
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DECLARATION OF INDEPENDENCE (U.S. 1776).
-
-
-
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4
-
-
38849192180
-
-
FOUNDERS' CONSTITUTION, supra note 1, at 133
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FOUNDERS' CONSTITUTION, supra note 1, at 133.
-
-
-
-
5
-
-
38849124645
-
-
The Virginia Constitution also provided for fixed and adequate salaries. Id.
-
The Virginia Constitution also provided for "fixed and adequate salaries." Id.
-
-
-
-
6
-
-
38849125928
-
-
The Maryland Constitution spelled out that tenure during good behaviour meant that they were removable only for misbehavior, on conviction in a Court of law. Id.
-
The Maryland Constitution spelled out that tenure during "good behaviour" meant that they were "removable only for misbehavior, on conviction in a Court of law." Id.
-
-
-
-
7
-
-
38849155546
-
-
See id. at 139 (quoting from Elliot's Debate in Pennsylvania, Dec. 1987).
-
See id. at 139 (quoting from Elliot's Debate in Pennsylvania, Dec. 1987).
-
-
-
-
8
-
-
38849114750
-
-
Id. at 141
-
Id. at 141
-
-
-
-
9
-
-
38849195085
-
-
(quoting THE ANTI-FEDERALIST NO. 15 (Brutus)).
-
(quoting THE ANTI-FEDERALIST NO. 15 (Brutus)).
-
-
-
-
10
-
-
38849146111
-
-
Id. at 142-43
-
Id. at 142-43.
-
-
-
-
11
-
-
38849083735
-
-
FOUNDERS' CONSTITUTION, supra note 1, at 144
-
FOUNDERS' CONSTITUTION, supra note 1, at 144.
-
-
-
-
12
-
-
38849087781
-
-
Id
-
Id.
-
-
-
-
13
-
-
38849092360
-
-
Id
-
Id.
-
-
-
-
14
-
-
38849191034
-
-
Id
-
Id.
-
-
-
-
15
-
-
33745676789
-
-
The source of the data in this and the following paragraph is Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J. PUB. POLICY 769, 777-87 (2006) [hereinafter Calabresi & Lindgren]. Other sources contain very similar figures but there are inevitable variations because of differences in dealing with unusual circumstances (e.g., does the length of service of Charles Evans Hughes, who was appointed twice to the Court with an intervening period when he was not on the Court, count as two separate terms or one extended term?).
-
The source of the data in this and the following paragraph is Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J. PUB. POLICY 769, 777-87 (2006) [hereinafter Calabresi & Lindgren]. Other sources contain very similar figures but there are inevitable variations because of differences in dealing with unusual circumstances (e.g., does the length of service of Charles Evans Hughes, who was appointed twice to the Court with an intervening period when he was not on the Court, count as two separate terms or one extended term?).
-
-
-
-
16
-
-
38849098116
-
-
The Supreme Court has varied in size from six Justices at the outset to a high often Justices during the Civil War, but has been stable at nine Justices since 1870. President Roosevelt's 1937 proposal to expand the Court to as many as sixteen Justices was precipitated by a series of decisions striking down New Deal legislation by 5-4 votes in his first term of office. The legislation, characterized by opponents and the media as court packing, was abandoned when a change in Justice Roberts' voting pattern upheld legislation early in the President's second term
-
The Supreme Court has varied in size from six Justices at the outset to a high often Justices during the Civil War, but has been stable at nine Justices since 1870. President Roosevelt's 1937 proposal to expand the Court to as many as sixteen Justices was precipitated by a series of decisions striking down New Deal legislation by 5-4 votes in his first term of office. The legislation, characterized by opponents and the media as "court packing," was abandoned when a change in Justice Roberts' voting pattern upheld legislation early in the President's second term.
-
-
-
-
17
-
-
38849183157
-
-
See Robert Pear, Social Security Underestimates Future Life Spans, Critics Say, N.Y. TIMES, Dec. 31, 2004, http://www.nytimes. com/2004/12/31/politics/31benefit.html?.
-
See Robert Pear, Social Security Underestimates Future Life Spans, Critics Say, N.Y. TIMES, Dec. 31, 2004, http://www.nytimes. com/2004/12/31/politics/31benefit.html?.
-
-
-
-
18
-
-
38849112315
-
-
See National Center of Health Statistics, LEWK3, United States Life Tables, 1999-2002 (providing the remaining life expectancy for persons who have attained age 50: Entire population: 30.3 years; White females: 33.3 years; White males: 28.5 years; Black males: 24.6 years). Moreover, the ability of modern medicine allows a person who gets the best available medical care to continue to exercise very important responsibilities despite severe coronary problems (e.g., Vice President Cheney) or life-threatening bouts of cancer (Chief Justice Rehnquist and Justices Stevens and Ginsburg).
-
See National Center of Health Statistics, LEWK3, United States Life Tables, 1999-2002 (providing the remaining life expectancy for persons who have attained age 50: Entire population: 30.3 years; White females: 33.3 years; White males: 28.5 years; Black males: 24.6 years). Moreover, the ability of modern medicine allows a person who gets the best available medical care to continue to exercise very important responsibilities despite severe coronary problems (e.g., Vice President Cheney) or life-threatening bouts of cancer (Chief Justice Rehnquist and Justices Stevens and Ginsburg).
-
-
-
-
19
-
-
0347740411
-
-
See David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. CHI. L. REV. 995, 1072-80 (2000) [hereinafter Garrow] (stating that far and away the most serious problem with decrepitude during the early 1990s involved Justice Thurgood Marshall and fully documents his assertion).
-
See David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. CHI. L. REV. 995, 1072-80 (2000) [hereinafter Garrow] (stating that "far and away the most serious problem with decrepitude during the early 1990s involved Justice Thurgood Marshall" and fully documents his assertion).
-
-
-
-
20
-
-
38849192179
-
-
The Commission on Revision of the Federal Court Appellate System studied this problem and recommended the creation of a National Court of Appeals between the Supreme Court and the Courts of Appeal. See the Commission's REPORT, STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE 5-39 June 1975, I believe the recommendation was sound and that the problem is even more serious today
-
The Commission on Revision of the Federal Court Appellate System studied this problem and recommended the creation of a National Court of Appeals between the Supreme Court and the Courts of Appeal. See the Commission's REPORT, STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE 5-39 (June 1975). I believe the recommendation was sound and that the problem is even more serious today.
-
-
-
-
21
-
-
38849094977
-
-
See Bush v. Gore, 531 U.S. 98 (2000).
-
See Bush v. Gore, 531 U.S. 98 (2000).
-
-
-
-
22
-
-
38849197317
-
-
Judge Learned Hand, who raised doubts about the legitimacy of judicial review in 1958, applied the term Platonic Guardians to the Justices of the Court. The Court, in his view, had become a third, legislative, chamber. For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. See LEARNED HAND, THE BILL OF RIGHTS 73 (1958).
-
Judge Learned Hand, who raised doubts about the legitimacy of judicial review in 1958, applied the term "Platonic Guardians" to the Justices of the Court. The Court, in his view, had become a third, legislative, chamber." "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not." See LEARNED HAND, THE BILL OF RIGHTS 73 (1958).
-
-
-
-
23
-
-
38849185742
-
-
THE FEDERALIST NO. 78 (Alexander Hamilton),
-
THE FEDERALIST NO. 78 (Alexander Hamilton),
-
-
-
-
24
-
-
38849153949
-
-
quoted in FOUNDERS' CONSTITUTION, supra note 1, at 141-44.
-
quoted in FOUNDERS' CONSTITUTION, supra note 1, at 141-44.
-
-
-
-
25
-
-
38849131764
-
Neither Force Nor Will, 12
-
which I have drawn upon here. See
-
See L.H. Larue, Neither Force Nor Will, 12 CONSTITUTIONAL COMMENTARY 179-82 (1995), which I have drawn upon here.
-
(1995)
CONSTITUTIONAL COMMENTARY
, vol.179 -82
-
-
Larue, L.H.1
-
26
-
-
38849192842
-
-
FOUNDERS' CONSTITUTION, supra note 1, at 142
-
FOUNDERS' CONSTITUTION, supra note 1, at 142.
-
-
-
-
27
-
-
38849088453
-
-
Id. at 143
-
Id. at 143.
-
-
-
-
28
-
-
38849197632
-
-
Id
-
Id.
-
-
-
-
29
-
-
74549213514
-
-
See, e.g, Mar. 28
-
See, e.g. Margaret Talbot, Supreme Confidence: The Jurisprudence of Justice Antonin Scalia, THE NEW YORKER, Mar. 28, 2005, http://www.newamerica.net/publications/articles/ 2005/supreme_confidence.
-
(2005)
Supreme Confidence: The Jurisprudence of Justice Antonin Scalia, THE NEW YORKER
-
-
Talbot, M.1
-
30
-
-
38849093633
-
-
President Andrew Jackson's Message to Congress, December 1829, quoted in LEONARD D. WHITE, INTRODUCTION TO THE STUDY OF PUBLIC ADMINISTRATION 308-09 (4th ed. 1955).
-
President Andrew Jackson's Message to Congress, December 1829, quoted in LEONARD D. WHITE, INTRODUCTION TO THE STUDY OF PUBLIC ADMINISTRATION 308-09 (4th ed. 1955).
-
-
-
-
31
-
-
38849181408
-
-
U.S. CONST, art. II, § 2 provides: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein provided for, and which shall be established by Law; but the Congress may by Law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
-
U.S. CONST, art. II, § 2 provides: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein provided for, and which shall be established by Law; but the Congress may by Law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
-
-
-
-
32
-
-
38849186425
-
-
Chief Justice Rehnquist has explored the early attempt to impeach Justice Samuel Chase. See WILLIAM H. REHNQUIST, GRAND INQUEST: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992) (discussing the politically motivated impeachment of Justice Chase and concluding that its failure fortified judicial independence).
-
Chief Justice Rehnquist has explored the early attempt to impeach Justice Samuel Chase. See WILLIAM H. REHNQUIST, GRAND INQUEST: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992) (discussing the politically motivated impeachment of Justice Chase and concluding that its failure fortified judicial independence).
-
-
-
-
33
-
-
38849195962
-
-
See REPORT OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL 9-26 (Aug. 1993) (concluding that Art. III judges may be removed only by impeachment and recommending that a statute provide for automatic suspension of duties when a judge is convicted of a felony). For subsequent discussion of the evolution of federal appellate justice,
-
See REPORT OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL 9-26 (Aug. 1993) (concluding that Art. III judges may be removed only by impeachment and recommending that a statute provide for automatic suspension of duties when a judge is convicted of a felony). For subsequent discussion of the evolution of federal appellate justice,
-
-
-
-
34
-
-
38849191520
-
-
see RESTRUCTURING JUSTICE: THE INNOVATIONS OF THE NINTH CIRCUIT AND THE FUTURE OF THE FEDERAL COURTS (Arthur D. Hellman ed., 1990).
-
see RESTRUCTURING JUSTICE: THE INNOVATIONS OF THE NINTH CIRCUIT AND THE FUTURE OF THE FEDERAL COURTS (Arthur D. Hellman ed., 1990).
-
-
-
-
35
-
-
38849175871
-
-
The Court was created in 1789 with six members; a seventh was added in 1807; an eighth and ninth Justice was added in 1837; a tenth was added in 1863; two seats were eliminated in 1866-1869; and a ninth seat restored in 1870. Since then the Court has not changed in size. See HENRY J. ABRAHAM, JUSTICES, PRESIDENTS AND SENATORS 53-96 (Rev. ed. 1999).
-
The Court was created in 1789 with six members; a seventh was added in 1807; an eighth and ninth Justice was added in 1837; a tenth was added in 1863; two seats were eliminated in 1866-1869; and a ninth seat restored in 1870. Since then the Court has not changed in size. See HENRY J. ABRAHAM, JUSTICES, PRESIDENTS AND SENATORS 53-96 (Rev. ed. 1999).
-
-
-
-
36
-
-
38849173504
-
-
For extensive discussion of statutory regulation of federal court jurisdiction and its limitations, see RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM Chapters 1-5 (5th ed. 2003).
-
For extensive discussion of statutory regulation of federal court jurisdiction and its limitations, see RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM Chapters 1-5 (5th ed. 2003).
-
-
-
-
37
-
-
38849105314
-
-
Efforts to make Justices work harder or with less assistance may have unintended and undesirable consequences and have a vindictive or petty quality. For example, a reduction of law clerks from the current four to the former one would put a much larger burden on each Justice and especially so if more mandatory jurisdiction was also required; and complaints would be made that it handicapped the Court's ability to exercise its constitutional duties
-
Efforts to make Justices work harder or with less assistance may have unintended and undesirable consequences and have a vindictive or petty quality. For example, a reduction of law clerks from the current four to the former one would put a much larger burden on each Justice and especially so if more mandatory jurisdiction was also required; and complaints would be made that it handicapped the Court's ability to exercise its constitutional duties.
-
-
-
-
38
-
-
84888467546
-
-
text accompanying note 34
-
See infra text accompanying note 34.
-
See infra
-
-
-
39
-
-
38849109150
-
-
President Taft made five appointments in his four-year term (plus the appointment of an existing Justice as Chief Justice) and President Harding made four appointments. On the other hand, President Carter made no appointments in a four-year term and three recent presidents made no appointments during their first term in office FDR, Clinton and the second Bush
-
President Taft made five appointments in his four-year term (plus the appointment of an existing Justice as Chief Justice) and President Harding made four appointments. On the other hand, President Carter made no appointments in a four-year term and three recent presidents made no appointments during their first term in office (FDR, Clinton and the second Bush).
-
-
-
-
40
-
-
38849148126
-
-
See Calabresi & Lindgren, supra note 11, at 800-801 (stating that the average age of Justices when they are appointed or commissioned has remained relatively constant throughout history (ranging between 52 and 57 years since 1821)).
-
See Calabresi & Lindgren, supra note 11, at 800-801 (stating that the average age of Justices when they are appointed or commissioned has remained relatively constant throughout history (ranging between 52 and 57 years since 1821)).
-
-
-
-
41
-
-
38849167906
-
-
Id. at 801-811 (providing impressive statistical evidence that retirement decisions of Justices are strongly influenced by a desire to influence the appointment of a successor: nearly two thirds of resigning Justices (34 of 53) retired during the term of a president of the same party. On the other hand, of Justices who died in office, 60% (29 of 48) did so during the term of a President of the opposing party (they tried but failed to survive the term of a President of the opposing party)).
-
Id. at 801-811 (providing impressive statistical evidence that retirement decisions of Justices are strongly influenced by a desire to influence the appointment of a successor: nearly two thirds of resigning Justices (34 of 53) retired during the term of a president of the same party. On the other hand, of Justices who died in office, 60% (29 of 48) did so during the term of a President of the opposing party (they tried but failed to survive the term of a President of the opposing party)).
-
-
-
-
42
-
-
38849165692
-
-
See Philip D. Oliver, Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 OHIO ST. L. J. 799, 805-06 (1986) (relying on judicial biographies of Chief Justice Warren by G. Edward White and Bernard Schwartz).
-
See Philip D. Oliver, Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 OHIO ST. L. J. 799, 805-06 (1986) (relying on judicial biographies of Chief Justice Warren by G. Edward White and Bernard Schwartz).
-
-
-
-
43
-
-
38849129198
-
-
See Garrow, supra note 15
-
See Garrow, supra note 15.
-
-
-
-
44
-
-
38849086467
-
-
See DAVID N. ATKINSON, LEAVING THE BENCH: SUPREME COURT JUSTICES AT THE END (Kansas 1999) [hereinafter ATKINSON].
-
See DAVID N. ATKINSON, LEAVING THE BENCH: SUPREME COURT JUSTICES AT THE END (Kansas 1999) [hereinafter ATKINSON].
-
-
-
-
45
-
-
38849169347
-
-
Calabresi & Lindgren, supra note 11, at 807
-
Calabresi & Lindgren, supra note 11, at 807.
-
-
-
-
46
-
-
38849178527
-
-
Id. at 815-18
-
Id. at 815-18.
-
-
-
-
47
-
-
38849116785
-
-
The evidence relies on the detailed discussion of individual justices in Garrow, supra note 15
-
The evidence relies on the detailed discussion of individual justices in Garrow, supra note 15,
-
-
-
-
48
-
-
38849146809
-
-
and ATKINSON, supra note 36. Garrow presents strong evidence that at least eleven justices have continued to serve when they were physically or mentally incapacitated. Even more worrisome, nearly half of the last eleven Justices to leave office (45%) were mentally decrepit and a half of the last six Justices to leave office were mentally decrepit in their last years on the Court.
-
and ATKINSON, supra note 36. Garrow presents strong evidence that at least eleven justices have continued to serve when they were physically or mentally incapacitated. Even more worrisome, "nearly half of the last eleven Justices to leave office (45%) were mentally decrepit and a half of the last six Justices to leave office were mentally decrepit in their last years on the Court."
-
-
-
-
49
-
-
38849087780
-
-
Calabresi & Lindgren, supra note 11, at 817
-
Calabresi & Lindgren, supra note 11, at 817.
-
-
-
-
50
-
-
38849129754
-
-
See Garrow, supra note 15, at 1053-54
-
See Garrow, supra note 15, at 1053-54.
-
-
-
-
51
-
-
38849158239
-
-
For a well-considered term limits proposal, see Philip D. Oliver, Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 OHIO ST. L.J. 799 (1986). For an age limits proposal,
-
For a well-considered term limits proposal, see Philip D. Oliver, Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 OHIO ST. L.J. 799 (1986). For an age limits proposal,
-
-
-
-
52
-
-
38849096191
-
-
see Garrow, supra note 15
-
see Garrow, supra note 15.
-
-
-
-
53
-
-
38849202857
-
-
Paul D. Carrington, Checks and Balances: Congress and the Federal Courts, in REFORMING THE COURT, supra note, at 137.
-
Paul D. Carrington, Checks and Balances: Congress and the Federal Courts, in REFORMING THE COURT, supra note, at 137.
-
-
-
-
54
-
-
38849157359
-
-
The proposal in its current form may be found at the following website: http://paulcarrington.com/Supreme%20Court%20Renewal%20Act.htm. A full list of those endorsing the proposal is included.
-
The proposal in its current form may be found at the following website: http://paulcarrington.com/Supreme%20Court%20Renewal%20Act.htm. A full list of those endorsing the proposal is included.
-
-
-
-
55
-
-
38849138336
-
-
Id
-
Id.
-
-
-
-
56
-
-
38849194469
-
-
Discussed infra at text accompanying note 54.
-
Discussed infra at text accompanying note 54.
-
-
-
-
57
-
-
38849180756
-
-
See RICHARD H. FALLON, J.R., DANIEL J. MELTZER AND DAVID L. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (5th ed. 2003).
-
See RICHARD H. FALLON, J.R., DANIEL J. MELTZER AND DAVID L. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (5th ed. 2003).
-
-
-
-
58
-
-
38849170869
-
-
Id. at 28-54 (brief summary), at 268-318 (original jurisdiction), at 466-600 (review of state court decisions), at 1552-1621 (review of federal decisions and certiorari policy).
-
Id. at 28-54 (brief summary), at 268-318 (original jurisdiction), at 466-600 (review of state court decisions), at 1552-1621 (review of federal decisions and certiorari policy).
-
-
-
-
60
-
-
33845908815
-
On the Road: The Supreme Court and the History of Circuit Riding, 24
-
hereinafter Glick, This article provides a good summary of the history of circuit riding, its purposes and effects, and the Court's attempts to eliminate it. The article also cites much of the prior literature on the subject. See
-
See Joshua Glick, On the Road: The Supreme Court and the History of Circuit Riding, 24 CARDOZO L. REV. 1753 (2003) [hereinafter Glick]. This article provides a good summary of the history of circuit riding, its purposes and effects, and the Court's attempts to eliminate it. The article also cites much of the prior literature on the subject.
-
(2003)
CARDOZO L. REV
, vol.1753
-
-
Glick, J.1
-
61
-
-
38849136979
-
-
For letters from Supreme Court Justices complaining about the burdensome nature of the long travel by carriage throughout the breadth of the country, see FOUNDERS' CONSTITUTION, supra note 1, at 163 (letters of Chief Justice Jay on behalf of the Court and of Justice James Iredell).
-
For letters from Supreme Court Justices complaining about the burdensome nature of the long travel by carriage throughout the breadth of the country, see FOUNDERS' CONSTITUTION, supra note 1, at 163 (letters of Chief Justice Jay on behalf of the Court and of Justice James Iredell).
-
-
-
-
62
-
-
38849138335
-
-
Chief Justice Jay drafted a letter dated on behalf of the Court to President Washington attacking the constitutionality of circuit riding. See id. at 161-62. The letter, dated Sept. 15, 1790, was never delivered. The letter contains the two principal arguments advanced by the appellant in Stuart v. Laird, 5 U.S, 1 Cranch 299 (1803, and discussed below: (1) cases decided by the Justices on circuit were not within either the original or appellate jurisdiction of the Court and the duties were incompatible because the Supreme Court was required to review appeals from the circuit courts; and (2) circuit riding required the Justice to hold two offices at one time and they had not been appointed by the President to the circuit court as required by Art, II, § 2
-
Chief Justice Jay drafted a letter dated on behalf of the Court to President Washington attacking the constitutionality of circuit riding. See id. at 161-62. The letter, dated Sept. 15, 1790, was never delivered. The letter contains the two principal arguments advanced by the appellant in Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803), and discussed below: (1) cases decided by the Justices on circuit were not within either the original or appellate jurisdiction of the Court and the duties were incompatible because the Supreme Court was required to review appeals from the circuit courts; and (2) circuit riding required the Justice to hold two offices at one time and they had not been appointed by the President to the circuit court as required by Art, II, § 2.
-
-
-
-
63
-
-
84874306577
-
-
§ 42 1948
-
28 U.S.C. § 42 (1948).
-
28 U.S.C
-
-
-
65
-
-
38849096834
-
-
See note 47, at, listing Justices who have served in lower federal courts after retiring from the Supreme Court
-
See Glick, supra note 47, at 1830-31 (listing Justices who have served in lower federal courts after retiring from the Supreme Court).
-
supra
, pp. 1830-1831
-
-
Glick1
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66
-
-
38849138337
-
-
5 U.S. (1 Cranch) 299 (1803).
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5 U.S. (1 Cranch) 299 (1803).
-
-
-
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67
-
-
38849155545
-
-
Stuart is discussed in David P. Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U. CHI. L. REV. 646, 662-63 (1982),
-
Stuart is discussed in David P. Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U. CHI. L. REV. 646, 662-63 (1982),
-
-
-
-
68
-
-
38849177202
-
-
and Glick, supra note 47, at 1794-1829
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and Glick, supra note 47, at 1794-1829.
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-
-
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69
-
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38849149445
-
-
2, Mar. 8
-
2 Stat. 132 (Mar. 8, 1802).
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(1802)
, vol.132
-
-
Stat1
-
70
-
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38849114749
-
-
The Jeffersonian legislation was accompanied by a large polemical and political literature. Alexander Hamilton, when the legislation was pending, argued that, even if Congress could abolish and recreate the circuit courts, it could not abolish the emoluments of the office, which were retained during good behavior. See FOUNDERS' CONSTITUTION, supra note 1, at 166-67, 175-79
-
The Jeffersonian legislation was accompanied by a large polemical and political literature. Alexander Hamilton, when the legislation was pending, argued that, even if Congress could abolish and recreate the circuit courts, it could not "abolish the emoluments of the office," which were retained during good behavior. See FOUNDERS' CONSTITUTION, supra note 1, at 166-67, 175-79
-
-
-
-
71
-
-
38849144983
-
-
(reprinting Hamilton's THE EXAMINATION, NOS. 6, 12, and 13 (1802)). The constitutionality of the legislation was vigorously debated in the House of Representatives. Hamilton argued that the Office is something different from the Court and the one may exist independently of the other.
-
(reprinting Hamilton's THE EXAMINATION, NOS. 6, 12, and 13 (1802)). The constitutionality of the legislation was vigorously debated in the House of Representatives. Hamilton argued that "the Office is something different from the Court" and "the one may exist independently of the other."
-
-
-
-
72
-
-
38849118138
-
-
Id. at 175-77. Moreover, affirm[ing] the right of Congress to abolish the Judges of the Inferior Courts is absolutely fatal to the independence of the Judiciary department because the tenure of an office is one of its essential qualities.
-
Id. at 175-77. Moreover, "affirm[ing] the right of Congress to abolish the Judges of the Inferior Courts is absolutely fatal to the independence of the Judiciary department" because "the tenure of an office is one of its essential qualities."
-
-
-
-
73
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-
38849089119
-
-
Id. at 178
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Id. at 178.
-
-
-
-
75
-
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38849206657
-
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Stuart, 5 U.S. (1 Cranch) at 309.
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Stuart, 5 U.S. (1 Cranch) at 309.
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-
-
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76
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-
38849119487
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-
Id. at 308
-
Id. at 308.
-
-
-
-
77
-
-
38849195087
-
-
Id. at 309
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Id. at 309.
-
-
-
-
78
-
-
38849130413
-
-
Calabresi & Lindgren, supra note 11, at 859-868 (discussing the constitutionality of statutory proposals, An earlier version of the article took the position that their statutory proposal, similar to the Carrington-Cramton proposal, was constitutional. The final version reaches the contrary conclusion, arguing that the text of the Good Behavior Clause and the clause of Art. 1, Sec. 3, that the Chief Justice shall preside when the Senate tries a President in an impeachment proceeding, when read together, make the office of a Supreme Court Justice that is unique and distinctive and therefore circuit riding, designation permitting service on lower courts, and prohibit successive service on a lower court after a term of years on the high court are unconstitutional. They argue that the originalist position is that the First Congress, the Marshall Court with Marshall recusing himself because of his involvement in the case, Stuart v. Laird, and the
-
Calabresi & Lindgren, supra note 11, at 859-868 (discussing the constitutionality of statutory proposals). An earlier version of the article took the position that their statutory proposal, similar to the Carrington-Cramton proposal, was constitutional. The final version reaches the contrary conclusion, arguing that the text of the Good Behavior Clause and the clause of Art. 1, Sec. 3, that "the Chief Justice shall preside" when the Senate tries a President in an impeachment proceeding, when read together, make the office of a Supreme Court Justice that is unique and distinctive and therefore circuit riding, designation permitting service on lower courts, and prohibit successive service on a lower court after a term of years on the high court are unconstitutional. They argue that the "originalist" position is that the First Congress, the Marshall Court (with Marshall recusing himself because of his involvement in the case), Stuart v. Laird, and the unquestioned continuance of the practice for 121 years are all wrong. Circuit riding was an unconstitutional practice and should not be relied upon today.
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-
-
-
79
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38849164619
-
-
This commentary relies in part on information provided by Bruce Ragsdale, Chief Historian, Federal Judicial Center
-
This commentary relies in part on information provided by Bruce Ragsdale, Chief Historian, Federal Judicial Center.
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-
-
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80
-
-
38849154902
-
-
Id
-
Id.
-
-
-
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81
-
-
38849100720
-
-
12 U.S. Stat. 794 (March 8, 1863).
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12 U.S. Stat. 794 (March 8, 1863).
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-
-
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82
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38849150132
-
-
The U.S. Commerce Court was created in 1910 to review decisions of the Interstate Commerce Commission. Controversial from the beginning, it was abolished in 1913, leaving its judges without judicial work. The appointees were selected from existing federal judges; but tenure on the Commerce Court was limited to five years. Two of them, Julian Mack and Martin Knapp, were some years later appointed to federal courts of appeal. Subsequent emergency courts have been staffed by existing Article III judges. See George E. Dix, The Death of the Commerce Court: A Study in Institutional Weakness, 8 AM. J. LEG. HIST. 238 (1964).
-
The U.S. Commerce Court was created in 1910 to review decisions of the Interstate Commerce Commission. Controversial from the beginning, it was abolished in 1913, leaving its judges without judicial work. The appointees were selected from existing federal judges; but tenure on the Commerce Court was limited to five years. Two of them, Julian Mack and Martin Knapp, were some years later appointed to federal courts of appeal. Subsequent emergency courts have been staffed by existing Article III judges. See George E. Dix, The Death of the Commerce Court: A Study in Institutional Weakness, 8 AM. J. LEG. HIST. 238 (1964).
-
-
-
-
83
-
-
38849131765
-
-
487 U.S. 654, 693 (1988).
-
487 U.S. 654, 693 (1988).
-
-
-
-
84
-
-
38849140726
-
-
Id. at 695-96
-
Id. at 695-96.
-
-
-
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85
-
-
38849209656
-
-
488 U.S. 361, 397-412 (1989).
-
488 U.S. 361, 397-412 (1989).
-
-
-
-
86
-
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38849125272
-
-
Id. at 398
-
Id. at 398.
-
-
-
-
87
-
-
38849112313
-
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Id. at 400
-
Id. at 400.
-
-
-
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88
-
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38849207301
-
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Id. at 399
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Id. at 399.
-
-
-
-
89
-
-
57649106443
-
Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26
-
See
-
See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 CARDOZO L. REV. 579, 601-02 (2005).
-
(2005)
CARDOZO L. REV
, vol.579
, pp. 601-602
-
-
Resnik, J.1
-
90
-
-
38849189781
-
-
Id. at 602-11
-
Id. at 602-11.
-
-
-
-
91
-
-
84874306577
-
-
§§ 291-294 1948
-
28 U.S.C. §§ 291-294 (1948).
-
28 U.S.C
-
-
-
95
-
-
38849102098
-
-
Id. §§ 351-364.
-
§§
, pp. 351-364
-
-
-
96
-
-
38849148797
-
-
For discussion of judicial discipline and impeachment of federal judges, see Symposium, Judicial Discipline and Impeachment, 76 KY. L.J. 633-810 (1987-88), especially papers by Stephen B. Burbank and Ronald D. Rotunda.
-
For discussion of judicial discipline and impeachment of federal judges, see Symposium, Judicial Discipline and Impeachment, 76 KY. L.J. 633-810 (1987-88), especially papers by Stephen B. Burbank and Ronald D. Rotunda.
-
-
-
-
97
-
-
38849135273
-
-
398 U.S. 74 1970
-
398 U.S. 74 (1970).
-
-
-
-
98
-
-
38849089766
-
-
Id. at 84
-
Id. at 84.
-
-
-
-
99
-
-
38849087107
-
-
Id. at 89-129 (Harlan J., concurring).
-
Id. at 89-129 (Harlan J., concurring).
-
-
-
-
100
-
-
38849104118
-
-
Id. at 129-142 (Douglas J., dissenting).
-
Id. at 129-142 (Douglas J., dissenting).
-
-
-
-
101
-
-
38849145460
-
-
See Garrow, supra note 15, at 1054
-
See Garrow, supra note 15, at 1054.
-
-
-
-
102
-
-
38849151987
-
-
See supra notes 5-8 for discussion of the statements of the founding generation (both those supporting and opposing ratification of the Constitution) evidencing that judicial independence was the purpose of the Good Behavior and Compensation Clauses.
-
See supra notes 5-8 for discussion of the statements of the founding generation (both those supporting and opposing ratification of the Constitution) evidencing that judicial independence was the purpose of the Good Behavior and Compensation Clauses.
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-
-
|