Although I hate to disagree with the list of eminent legal scholars (that’s a lie, of course, but it sounds good to say it) who have endorsed that specific proposal or some similar mechanism, I don’t think enacting such a reform by statute would pass the constitutional smell test. A rotational scheme like the kind the authors propose would essentially demote Supreme Court justices to lower courts after their main 18-year period of service had run, which, to me, would conflict fairly directly with the requirements of Article III, Section 1:
The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
This language has most commonly (and correctly, in my view) been interpreted to say that federal judges have life tenure in their offices unless they are impeached for bad behavior. But of course, the intrepid law professors behind the proposal do not concede this point. They mainly base their argument on an early Marshall court case called Stuart v. Laird, which they contend stands for two propositions: (1) that Congress can abolish lower federal court offices and throw out judges occupying them, and (2) that Supreme Court justices can be forced to adjudicate lower court matters (the Judiciary Act of 1802 reinstated the practice of SCOTUS justices riding circuit, which the Judiciary Act of 1801 had replaced in favor of creating circuit court positions). From these two premises, the authors reason that Congress has the power to effectively push justices off of SCOTUS after they have served for an 18-year period and into service in lower courts.
Unfortunately for the authors, there are several fatal problems with that argument. The Stuart v. Laird opinion didn’t directly address the issue of whether Congress can kick out lower federal judges by abolishing their courts (one might speculate that the Federalist –dominated Court didn’t want to risk antagonizing the Republican-dominated Congress and President Jefferson by striking down the Republican-passed 1802 Judiciary Act, especially at a time when both were in a mood to impeach Supreme Court justices). Furthermore, even if Stuart v. Laird really stands for what the authors say it stands for, their conclusion about essentially kicking justices off of SCOTUS just doesn’t follow. There’s a big difference between making justices perform some lower court proceedings while they serve on SCOTUS at the same time -which Laird explicitly allowed- and demoting them from regular service on the Court to service on a circuit court. Moreover, there’s also a big difference between forcing lower court justices off their courts by eliminating their positions- assuming that’s actually constitutional- and forcing a justice off the Supreme Court. While Article III gives Congress the discretion to create lower federal courts, which might give some support to a “the power to create is the power to destroy” line of reasoning, the Supreme Court is a constitutional creature.
The authors also make what can only be described as some “living constitutionalist” arguments in favor of their proposal, including a really bizarre claim that their position is supported by reading the Good Behavior Clause “in conjunction with the Necessary and Proper Clause.” In that way, the piece actually provides a good example of how evolutionary theories of constitutional meaning can disregard text and history-based methods of interpretation.
But I ramble. To briefly state my views on the policy merits, I agree with Tom about the validity of some of the concerns the authors discussed. However, I think those concerns would be better addressed by a constitutional amendment setting a specific term of years for serving on the Court, say 25 years. That would combat pressures to choose younger justices to some extent while assuring a certain minimal level of turnover. In my assessment of those problems, I’m not sure I see the need for anything more. But maybe Tom can persuade me otherwise.
No comments:
Post a Comment