POS lesson 5/6

the constitution does not explicitly say that federal judges hold tenure for life. What does Art 3 Section 1 say about how long judges hold their jobs?

“During good behavior“ → created from “king’s bench issue“

* they can be removed from office if they are impeached of convicted
* they have life tenure, their pay can not go down

What power to check the judiciary does Art 1 Sec2 grant the House

sole power of impeachment

what % of the house must vote in favor of conviction before an individual may be convicted

majority vote 50%

what power to check the judiciary does Art 1 sec 3 grant to the senate

sole power to try all impeachments

what % of the Senate must vote in favor of conviction bf an individual may be convicted

2/3 of present members

according to article 2 section 4 who may be removed from office if they are impeached and convicted of treason, bribery, or other high crime or misdemeanor?

president, vice president, all civil officers of the US

to promote an independent judiciary

federal judges basically serve for life

* good behavior

Federalist 78 opinion of good behavior

“barrier to the despotism of the prince“

= judges are not answering to the people, they answer to the constitution

AntiFederalist 78-79 opinion of good behavior

“proper provision they were made properly responsible“

* Brutus doesn’t object

on average how many justices does a president appoint

one every two years

Recusal: 42 U.S.C. § 455

any judge shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned

• personal bias or prejudice

• has served as private practice lawyer in the case

• has served in governmental employment and has participated as counsel or expressed an opinion concerning the merits of the particular case in controversy

• financial interest in the subject matter

• is related to the party, lawyer, or one of their relatives

in 1802 the Jeffersonian Republicans repealed Judiciary Act of 1801, what extraordinary action did the jeffersonians take to ensure the SC could not consider a challenge to the 1802 Act

April Act

Cancelled the August 1802 sitting of the SC couldn’t challenge the constitutionally of Repeal Act

debate of what is the standard for impeachment

failure to maintain good behavior? - what does this mean

indictable criminal offense? - Samuel Chase’s impeachment hearing

Answer, what is the standard for impeachment, from Samuel Chase’s case

impeachment may rest only on conduct that constitutes an indictable offense

* not based of their political preferences

Judge Thomas Pickering

dementia and alcoholic

* is this an issue of good behavior or treason
* no but he is still impeached

Why did the Jeffersonians object to Justice Samuel Chase

he opposed the Repeal 1802 Act

* claimed he was bias towards his political party

“bad behavior“

What reasons did Representative Giles sought to impeach Samuel Chase

objected his political views, temperament, and thought impeachment was the only meaningful check on the judicial power

Who presided over Chase’s impeachment trial in the Senate

Vice President Aaron Burr

* after he killed Hamilton

What did Chase’s Lawyer (Luther Martin) mean when he said basing impeachment on transgressions other than an indictable offense against the US would place judges “at the mercy of the prevailing party“

it would allow the party in control to impeach anyone they didn’t agree with, w/out evidence

who is the only SC justice ever impeached (although he was not convicted)

Samuel Chase

• Convicted in the House

• acquitted by the Senate

why did the senate oppose President Johnson’s nomination of Associate Justice Fortas to Chief Justice? (Rehniquest)

he thought the ethical ruled that regulate the conduct of judges did not apply to him

• attended meetings devoted in parts to matter that might come up in court

• ethical misconduct in financial dealings

• pornographic ethical concerns

what factors led to the defeat of Fortas to Chief Justice (o’brien)

Johnson overestimated his influence after announcing that he would not seek reelection (lame duck)

* republican senators wanted to deny him any appointments to the court

Abe Fortas Withdraw

New Nixon administration pushed for impeachment after Johnson withdrew Fortas nomination to Chief

* claims to have resigned bc the public controversy would affect his future work on the Court and the work of the Court proceedings

Justice “Wild Bill“ Douglas

he was threaten with impeachment due to liberal jurisprudence and life style

* his issues were in and out of the spotlight bc of other justice controversy

it is hard or easy to impeach

hard

what is a petition for a writ of certiorari?

since the court has discretionary appellate jurisdiction

the petition is for the SC on why they should hear the case in question, how they were wronged by the lower courts and how the law is in their favor

which act in congress established writ of certiorari as the primary means for supreme court review?

1925 Certiorari Act

* established the SC has having discretionary jurisdiction rather than their previous mandatory

How is the SC the most accessible branch

if your case meets the criteria, you can be seen by the court and have them hear your case

you can listen to the audio of oral arguments

Why is secrecy a net benefit to the Court

avoiding outside influence, nit-picking, conflicts w/ Congress, prevents hold back opinions

according to Justice Taft what is the function of the SC

the decide cases that involve principles of wide public interest

to decide cases that involve principles of wide government interest

two books that resulted from a break in the norm of secrecy

justice Blackmun and Harvard professor Lazarus: Closed Chambers…

Washington Post’s Woodward and Armstrong: The Brethren: inside the SC

what did Justice jackson mean when he said the SC functions like nine little law firms

justices often have an highly individualistic rather than group viewpoint

* justices often stay in their own chambers, not going into 1/8 for the entire term

how do the justices primarily communicate with one another about opinions that are being written about

written notes = memos

draft opinions

when is secrecy expected, the 1987 memorandum “the code of conducting for SC law clerks“ instruct clerks about discussing their work

They are not allow to discuss even after their clerkship ends

* not to discuss the work of the court w/ anyone other than justices and other clerks

1989: discussion with law clerks from other chambers should be circumspect
* avoid hinting about your justice is likely to vote

paid peitions

60/1400 (4%) are granted per term

20% of all peitions

$300

In forma Pauperis

unpaid petitions to the court

5600 (80%) of all petitions filled

8 (.1%) granted per term

dobbs leak statement of the court

breach of trust: justices need to be able to say their opinions and change their opinions

who leaked dobbs

the courts investigation came up empty

theories:

• liberals: push for public outcry, attempt to focus justice to change their minds

• conservative: cement opinions and votes

when are votes final?

when all justices agree that the opinion is ready for public distribution

Illegal ways to gain information about opinions and cases

leaks, often from clerks

how do you get information about opinions and cases legally

interviews with justices, releasing of a justice’s papers

Justice papers releasing

optional

* question of when, but remains up to the justice if they chose to release that information

why is the cert pool a thing

before 1972, each justice would have to consider every writ of certiorari

as the number of petitions increased so did the work and time this process took

how the the cert pool works

justices polling their clerks together and dividing up all filings and having a single clerk’s certiorari memo to all others participating in the pool

current justices

Chief Roberts, Thomas, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, Jackson

current justices in the cert pool

Chief Roberts, Thomas, Sotomayor, Kagan, Kavanaugh, Barrett, Jackson

dead list

cases not discussed at conference and simply denied

terms of the SC

start in Oct 2022

end in June 2023

* initial conference for the new term is held in September

when do oral argument start

first week October on Monday Tuesday Wednesday

* until April

Conference Days during oral arguments

Fridays

Months with no arguments/ what do they do

April May June

* issue opinions on the cases they heard in oral argument

what is the “long conference“

when the justices review all the petitions that were filled over the break

* around 2000 cases

rule of law

we follow the rules rather than who is screaming the loudest

* the SC makes decisions for everyone, which everyone needs to follow

why rule of law works

judiciary is not swayed

* indepdent judiciary upholds the system we set