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Volumn 95, Issue SPEC. ISS., 2007, Pages 1313-1334

Reforming the supreme court

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EID: 38849097710     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review
Times cited : (12)

References (102)
  • 1
    • 38849160789 scopus 로고    scopus 로고
    • WILLIAM BLACKSTONE, I COMMENTARIES 259-60 (1768),
    • WILLIAM BLACKSTONE, I COMMENTARIES 259-60 (1768),
  • 2
    • 38849117484 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • DECLARATION OF INDEPENDENCE (U.S. 1776).
    • DECLARATION OF INDEPENDENCE (U.S. 1776).
  • 4
    • 38849192180 scopus 로고    scopus 로고
    • FOUNDERS' CONSTITUTION, supra note 1, at 133
    • FOUNDERS' CONSTITUTION, supra note 1, at 133.
  • 5
    • 38849124645 scopus 로고    scopus 로고
    • The Virginia Constitution also provided for fixed and adequate salaries. Id.
    • The Virginia Constitution also provided for "fixed and adequate salaries." Id.
  • 6
    • 38849125928 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • Id. at 141
    • Id. at 141
  • 9
    • 38849195085 scopus 로고    scopus 로고
    • (quoting THE ANTI-FEDERALIST NO. 15 (Brutus)).
    • (quoting THE ANTI-FEDERALIST NO. 15 (Brutus)).
  • 10
    • 38849146111 scopus 로고    scopus 로고
    • Id. at 142-43
    • Id. at 142-43.
  • 11
    • 38849083735 scopus 로고    scopus 로고
    • FOUNDERS' CONSTITUTION, supra note 1, at 144
    • FOUNDERS' CONSTITUTION, supra note 1, at 144.
  • 12
    • 38849087781 scopus 로고    scopus 로고
    • Id
    • Id.
  • 13
    • 38849092360 scopus 로고    scopus 로고
    • Id
    • Id.
  • 14
    • 38849191034 scopus 로고    scopus 로고
    • Id
    • Id.
  • 15
    • 33745676789 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • See Bush v. Gore, 531 U.S. 98 (2000).
    • See Bush v. Gore, 531 U.S. 98 (2000).
  • 22
    • 38849197317 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • THE FEDERALIST NO. 78 (Alexander Hamilton),
    • THE FEDERALIST NO. 78 (Alexander Hamilton),
  • 24
    • 38849153949 scopus 로고    scopus 로고
    • quoted in FOUNDERS' CONSTITUTION, supra note 1, at 141-44.
    • quoted in FOUNDERS' CONSTITUTION, supra note 1, at 141-44.
  • 25
    • 38849131764 scopus 로고
    • 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 scopus 로고    scopus 로고
    • FOUNDERS' CONSTITUTION, supra note 1, at 142
    • FOUNDERS' CONSTITUTION, supra note 1, at 142.
  • 27
    • 38849088453 scopus 로고    scopus 로고
    • Id. at 143
    • Id. at 143.
  • 28
    • 38849197632 scopus 로고    scopus 로고
    • Id
    • Id.
  • 30
    • 38849093633 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • text accompanying note 34
    • See infra text accompanying note 34.
    • See infra
  • 39
    • 38849109150 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • See Garrow, supra note 15
    • See Garrow, supra note 15.
  • 44
    • 38849086467 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • Calabresi & Lindgren, supra note 11, at 807
    • Calabresi & Lindgren, supra note 11, at 807.
  • 46
    • 38849178527 scopus 로고    scopus 로고
    • Id. at 815-18
    • Id. at 815-18.
  • 47
    • 38849116785 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • Calabresi & Lindgren, supra note 11, at 817
    • Calabresi & Lindgren, supra note 11, at 817.
  • 50
    • 38849129754 scopus 로고    scopus 로고
    • See Garrow, supra note 15, at 1053-54
    • See Garrow, supra note 15, at 1053-54.
  • 51
    • 38849158239 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • see Garrow, supra note 15
    • see Garrow, supra note 15.
  • 53
    • 38849202857 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • Id
    • Id.
  • 56
    • 38849194469 scopus 로고    scopus 로고
    • Discussed infra at text accompanying note 54.
    • Discussed infra at text accompanying note 54.
  • 57
    • 38849180756 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • § 42 1948
    • 28 U.S.C. § 42 (1948).
    • 28 U.S.C
  • 65
    • 38849096834 scopus 로고    scopus 로고
    • 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
  • 66
    • 38849138337 scopus 로고    scopus 로고
    • 5 U.S. (1 Cranch) 299 (1803).
    • 5 U.S. (1 Cranch) 299 (1803).
  • 67
    • 38849155545 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • and Glick, supra note 47, at 1794-1829
    • and Glick, supra note 47, at 1794-1829.
  • 69
    • 38849149445 scopus 로고
    • 2, Mar. 8
    • 2 Stat. 132 (Mar. 8, 1802).
    • (1802) , vol.132
    • Stat1
  • 70
    • 38849114749 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • (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 scopus 로고    scopus 로고
    • 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
    • 38849089119 scopus 로고    scopus 로고
    • Id. at 178
    • Id. at 178.
  • 75
    • 38849206657 scopus 로고    scopus 로고
    • Stuart, 5 U.S. (1 Cranch) at 309.
    • Stuart, 5 U.S. (1 Cranch) at 309.
  • 76
    • 38849119487 scopus 로고    scopus 로고
    • Id. at 308
    • Id. at 308.
  • 77
    • 38849195087 scopus 로고    scopus 로고
    • Id. at 309
    • Id. at 309.
  • 78
    • 38849130413 scopus 로고    scopus 로고
    • 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.
  • 79
    • 38849164619 scopus 로고    scopus 로고
    • 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.
  • 80
    • 38849154902 scopus 로고    scopus 로고
    • Id
    • Id.
  • 81
    • 38849100720 scopus 로고    scopus 로고
    • 12 U.S. Stat. 794 (March 8, 1863).
    • 12 U.S. Stat. 794 (March 8, 1863).
  • 82
    • 38849150132 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 487 U.S. 654, 693 (1988).
    • 487 U.S. 654, 693 (1988).
  • 84
    • 38849140726 scopus 로고    scopus 로고
    • Id. at 695-96
    • Id. at 695-96.
  • 85
    • 38849209656 scopus 로고    scopus 로고
    • 488 U.S. 361, 397-412 (1989).
    • 488 U.S. 361, 397-412 (1989).
  • 86
    • 38849125272 scopus 로고    scopus 로고
    • Id. at 398
    • Id. at 398.
  • 87
    • 38849112313 scopus 로고    scopus 로고
    • Id. at 400
    • Id. at 400.
  • 88
    • 38849207301 scopus 로고    scopus 로고
    • Id. at 399
    • Id. at 399.
  • 89
    • 57649106443 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • Id. at 602-11
    • Id. at 602-11.
  • 91
    • 84874306577 scopus 로고    scopus 로고
    • §§ 291-294 1948
    • 28 U.S.C. §§ 291-294 (1948).
    • 28 U.S.C
  • 95
    • 38849102098 scopus 로고    scopus 로고
    • Id. §§ 351-364.
    • §§ , pp. 351-364
  • 96
    • 38849148797 scopus 로고    scopus 로고
    • 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 scopus 로고    scopus 로고
    • 398 U.S. 74 1970
    • 398 U.S. 74 (1970).
  • 98
    • 38849089766 scopus 로고    scopus 로고
    • Id. at 84
    • Id. at 84.
  • 99
    • 38849087107 scopus 로고    scopus 로고
    • Id. at 89-129 (Harlan J., concurring).
    • Id. at 89-129 (Harlan J., concurring).
  • 100
    • 38849104118 scopus 로고    scopus 로고
    • Id. at 129-142 (Douglas J., dissenting).
    • Id. at 129-142 (Douglas J., dissenting).
  • 101
    • 38849145460 scopus 로고    scopus 로고
    • See Garrow, supra note 15, at 1054
    • See Garrow, supra note 15, at 1054.
  • 102
    • 38849151987 scopus 로고    scopus 로고
    • 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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