Congress has used its power to impeach and remove federal judges only sparingly. Calls from Elon Musk and Republican lawmakers to impeach judges who rule against Trump are powerful reminders of why.
Oh, I think the DOGE-folks' point is not (merely) to "delegitimize the courts," but to also delegitimize the Congress, in service of advancing the "unified executive" ball. Demanding impeachment of federal judges for ideological impurity is a twofer -- it not only condemns the attacked judge(s); it simultaneously inspires ire against and distrust in the impotent legislators who did nothing about it (as they (rightly) will not impeach nor convict on these grounds), leaving the Executive as the sole savior of the masses from the corruption and ineptitude of the other TWO branches.
The conduct of the Fifth Circuit's Judge Jones who attacked you (Professor Vladeck) was shameful and blatantly unconstitutional. Your (and our) “speech on public issues occupies” the “highest rung of the hierarchy of First Amendment values” and is “entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983); Snyder v. Phelps, 562 U.S. 443, 452 (2011). See also Snyder at 453 (discussing when “[s]peech deals with matters of public concern”). See also Myers at 145 quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964):
The controlling principle under our Constitution is that our “speech concerning public affairs” is … [citizens’ sovereign power, i.e.,] the essence of self-government. The First and Fourteenth Amendments” [ensure] “that debate on public issues [may] be uninhibited, robust, and wide-open, and [may] include vehement, caustic, and [even] unpleasantly sharp attacks on government and public officials.”
“[T]he people are sovereign,” and we “speak” and “use information” regarding public issues for “enlightened self-government,” including “to hold officials” (public servants) “accountable to the people.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). Accord id. at 339-341, 344-350. Our “political speech must prevail against laws" (or naked judicial retaliation or discrimination) "that would suppress it” by “design or inadvertence.” Id. at 340. “Government” (the judges) must “prove” how their conduct “furthers a compelling interest” that federal courts were given the power to address, and the judges also must prove how their conduct “is narrowly tailored to achieve that interest.” Id.
Judge Jones also should consider James Madison’s rebuke of President George Washington for publicly denouncing Democratic-Republican Societies in 1794. Madison emphasized that President Washington's "denunciation of these Societies" (associations formed to facilitate citizens' exercise of rights and freedoms secured by the First Amendment) was an "attack on the most sacred principle of our Constitution and of Republicanism."
Madison emphasized that among purported “principles" that is most "indefensible in reason" and most "dangerous in practice” is the pretense by some officials that the people (in our Constitution) somehow gave federal officials the power to use “arbitrary denunciations” to “punish what the law permits.” With such unconstitutional measures “the Govt. may stifle all censures” on its own “misdoings; for if [people exercising political power are allowed to be] the Judge [they] will never [accept that] any censures [by mere citizens are] just.”
Just a niggling comment regarding the Glossip case description, where Gorsuch's absence is described as "Gorsuch was recused...": as far as I know there's no mechanism, in the current dysfunctional regime, by which a Justice is recused other than self-recusal.
So shouldn't that phrase read "...Gorsuch recused himself..." so as to make it clear that recusal wasn't imposed on him by Roberts, or however - which would be a major paradigm shift worthy of headlines in itself?
Fascinating. The regional breakdown of impeached federal judges is: South (6,) Midwest (4,) Northeast (2,) West (1,) U.S. (1). Since 1936 all but one (Claiborne) are from southern states.
Lackey v. Stinnie is an extremely important decision. It means that attorney fees will not be possible in many cases in which they are essential. Justice Kagan at oral argument asserted that "someone has to pay these fees" but that is not so. Many of these cases are brought by attorneys (like me) who work for clients who cannot pay fees, so when we bring these cases, and win, and can't get fees (because after we get a preliminary injunction, the defendant sees the writing on the wall and changes its policy), our work is pro bono. Fine - but there is only so much pro bono anyone can do, and lawyers without a solid financial footing can't do any of it. So without such fees, government lawlessness will more often go unchallenged. (Of course why would anyone worry about government lawlessness? But I guess the people who wrote section 1988 did.)
It seems there's an urgent need for better oversight. A Democratic congress might undertake an investigation. A less "regal" Supreme Court might install some guardrails.
Professor Vladeck, I like a lot of what you wrote, but I very respectfully submit that you do us a disservice by implying that judges should not be impeached for their official conduct (their so-called decisions, orders and opinions).
Federal judges (including on SCOTUS) are some of the worst con men I've ever seen. Their lies and violations of our Constitution are as big, bold, blatant and dangerous as Trump's. If you want an example, please see the opinions of the justices supporting their Dred Scott decision. At least some of them lied. Chief Justice Taney, for example, knew that his falsehoods about our history were false--he wrote at least part of his opinion, specifically, to pretend to rebut the truth in dissenting opinions. The independence of the judiciary (fidelity to our Constitution and independence from everything else) and our nation would have been well-served by Congress promptly impeaching and removing the justices responsible for Dred Scott as soon as the seditious leaders of some states purported to secede from the Union. For that matter, maybe Congress could have prevented some purported state secessions by starting such impeachment proceedings. Instead, hundreds of thousands of Americans died to effectively reverse Dred Scott, and for many years, America was saddled with corrupt judges writing absurd opinions to re-impose as much of the effects of slavery as they could for as long as they could. To this day, because of the mere judicial "custom" or "practice" of stare decisis, we're saddled with decisions written for such nefarious purposes (or their progeny).
If you want a more recent example, please see my comment about the justices responsible for Dobbs under "Bonus 123: The Judges' Bill Turns 100." The SCOTUS majority devoted dozens of pages to opinions written to deceive us about (and defraud us of the benefits of) some of the most fundamental and obvious principles in our Constitution.
I think Professor Vladeck has treated AOCs impeachment of Thomas a little too lightly. What she seemed to be pressing is the Ethics issues that surround both Thomas and Alito. Failure to adhere to Judicial Ethics should be a basis for impeachment but AOC seemed more interested in forcing the Supreme Court to adopt binding ethical rules rather than actually impeach Thomas and that politicizes the process in a different way and for a different purpose than Musk's claim but still is political ;t is just as well that her Motions were ignored
You raise a very fair point about "the very preliminary nature" of things. Your logic applies with equal force to condemnations of any call to impeach a judge (or impeach judges, generally). Let's see what the details are and then we should judge. It's contrary to the principles of our Constitution to say that any call for any particular impeachment is wrong just because of the political viewpoint of the speaker. We should judge judges as Article III says we should, i.e., by their "behaviour." As Alexander Hamilton put it in The Federalist No. 79, only federal “judges” who “behave properly, will be secured in their places for life.”
Impeachment of judges clearly was meant (and was understood) to be available to ensure that judges actually did support our Constitution with their decisions, orders and opinions. Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton). Having “courts composed of judges holding their offices” only “during good behavior” is a “powerful means” for ensuring “the excellences of republican government may be retained and its imperfections lessened or avoided.” Federalist No. 9 (Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison).
Thanks for the Harvard Law Rev article on judicial immunity. In US v Trump, Roberts discussed executive branch immunity but did not say much about official immunity in the judicial and legislative branches (or did I miss it?).
Could judicial immunity have been in the back of the majority justices' minds in granting "conclusive and preclusive" presidential immunity in Trump v. U.S.? That is, we're respecting the need for immunity of the head of the independent executive branch, and we're at the top of a co-equal independent branch, so our claim of immunity from congressional regulation of our ethics is also owed respect.
But didn't Madison, in Federalist Paper 51, view Congress as the dominant branch?
I'm almost certain that you're right about what at least some SCOTUS justices were thinking. It is well worth believing that, for (at least) some justices, "Trump v. US" was really in large part about "Judges vs. US." The most clear and relevant (controlling) authority is the Constitution, itself.
"We the [sovereign] People" created our "Constitution" and our "Union" to "establish Justice" and "secure the Blessings of Liberty to ourselves." Article I emphasized that We the People vested absolutely "All legislative Powers" in "Congress." Only our ELECTED representatives have the power to create federal law, which binds ALL persons under U.S. jurisdiction. Only our ELECTED representatives (not unelected judges) were given any power to create exceptions (immunity) from our laws. Every federal judge knows that.
The crucial point repeatedly re-emphasized by our Constitution (and in the ratification debates, including the Federalist Papers) regarding the power of the sovereign people to VOTE on ELECTED officials or IMPEACH and remove executive and judicial officers is the power to remove all public servants (any federal legislator, executive officer or judge) from office for usurping the power to make or enforce any purported legal authority that is contrary to our Constitution.
Article II emphasized that we vested no power in any president to commit criminal abuses or usurpations of power (we gave him no such immunity as the SCOTUS majority pretended in Trump v. US). We the People vested power in the president expressly, specifically and exclusively to "faithfully" and "to the best of" the president's "Ability, preserve, protect and defend the Constitution of the United States," including by "tak[ing] Care that the Laws be faithfully executed."
Article III emphasized that all federal "judicial Power shall extend" no further than We the People permitted "under this Constitution, the Laws of the United States, and Treaties." Article VI specifically emphasized that judges are bound by due process of law. Our "Constitution" and federal "Laws" that were "made in Pursuance" of our Constitution ("and all Treaties") are "the supreme Law of the Land" and all "Judges" everywhere "shall be bound thereby." All state and federal legislators and "all executive and judicial Officers" are "bound" to "support this Constitution." Amendments V and XIV repeatedly re-emphasized that every "person" is entitled to and subject to "due process of law."
In keeping with your reply, Article II says the "judicial Power" extends to "cases" and "controversies," not to writing their own ethics rules, which, as Prof. Tribe and I think Prof. Vladeck have argued, is more properly for Congress under the Necessary and Proper Clause, Art. I, Sec. 8, clse. 18.
SCOTUS rightly emphasizes that judges and courts have the duty to regulate themselves. That's an important point that supports your point. SCOTUS emphasizes that courts have the "inherent power" to regulate the conduct of their officers. Inasmuch as courts "inherently" have such "power," you're also necessarily right that Congress has the power (and duty) to regulate the conduct of all federal judges, including SCOTUS justices.
Article I (Section 8) hardly could be more clear or emphatic that "Congress shall have Power" to "make all Laws which shall be necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Article III expressly emphasized that the "judicial Power of the United States, shall be vested," in part, "in one supreme Court." It also emphasized that all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour." So the scope of the powers of Congress necessarily includes addressing the foregoing.
Article VI also expressly speaks to the ability of Congress to regulate the conduct of "all executive and judicial Officers," including by enacting legislation that requires the "Oath or Affirmation" of every federal judge "to support this Constitution." That is what Congress did in 5 U.S.C. 3331 and 28 U.S.C. 453.
Every SCOTUS justice does and must swear or affirm both oaths. All SCOTUS justices also are governed by, e.g., 28 U.S.C. 455. SCOTUS also enacted criminal statutes that govern SCOTUS justices, including, e.g., 18 U.S.C. 241, 242, 371 and 401. Justice Alito lied blatantly when he declared that nothing in our Constitution authorized Congress to regulate the conduct (or misconduct) of SCOTUS justices.
Yes. I think Roberts' subtext is: Within its respective sphere of (constitutional) authority, each branch is independent (which in turn demands immunity). Unfortunately this leaves only trust and respect, or impeachment, or - in the case of the exec and leg branches - the ballot box. See Scott A. Keller, Qualified and Absolute Immunity at Common Law, Stanford Law Review, Vol 73, June 2021. At 1157: "... Some form of judicial immunity 'is as old as the law..." Citing Randall v Brigham, 74 U.S. (Wall.) 523, 536 (1869).
Two other principles that also can claim lineage at least as long as judicial immunity and the law simply don’t exist under our Constitution. First and foremost was the concept of the sovereignty of somebody or some body of men above the people (king, queen or Parliament). Second to and supporting the foregoing was the conception of people as subjects.
Our Constitution repeatedly and expressly emphasizes the opposite of both the foregoing concepts. The people are sovereign; all officials are public servants; representatives whom we choose (elect) make laws to protect us (including from abuses of official power); our Constitution and federal law (and treaties) are the supreme law of the land; and every person is entitled to and subject to due process of law.
There is no support whatsoever in our Constitution for the pretense that any public servant is above any federal criminal law. The power of every public servant addressed in our Constitution is limited to the power that We the People vested in such servant. Section 1 of Articles I, II and III (referring to powers vested by us in our public servants) and Amendment X (referring to powers delegated by our Constitution) say that explicitly.
Federal judges cannot exempt the president from federal criminal law, in part, because We the People could not even delegate to judges such power. Not even We the sovereign People are exempt from federal criminal law, so we can’t exempt anyone else (including the president). The math is simple and clear. The pretenses to the contrary by the SCOTUS majority in Trump v. US were a complete sham and utterly frivolous.
It was only with great difficulty and reluctance that I came to acknowledge (and feel the need to expose) that black-collar crime always has been and always will be a timely topic. The words and deeds, not only of Justice Samuel Chase, but also of current SCOTUS justices, helped proved that point compellingly. So did the writing of the Founders of our nation and the Framers of our Constitution.
One of the most interesting and intriguing expressions I've seen in any SCOTUS opinion was "judicial despotism." SCOTUS justices got that expression from the writing of Alexander Hamilton (an attorney) in the Federalist Papers writing about the need to safeguard Americans from our so-called judges.
Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Hamilton). Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton). Having “courts composed of judges holding their offices” only “during good behavior” is a “powerful means” for ensuring “the excellences of republican government may be retained and its imperfections lessened or avoided.” Federalist No. 9 (Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison).
In a letter in January 1787, Thomas Jefferson (an attorney) expressed a similar concern. See https://press-pubs.uchicago.edu/founders/tocs/amendI_speech.html (No. 8). “If” the people “become inattentive” to “public affairs,” then “[legislators], judges and governors shall all become wolves.” If the people fail to govern their governors, then “under pretence of governing” our so-called governors “all” will act like “wolves” and attack people like “sheep.” The freedom of speech and press is “the only safeguard of the public liberty.” “The people” must be “censors of their governors” to “keep” public servants “to the true principles of their institution.”
Justice Chase was impeached by the House and almost convicted by the Senate because he pretended to enforce Section 2 of the Sedition Act of 1798 by committing crimes in Section 1 of the same law. Section 1 identified conduct that Congress and President John Adams concluded should constitute "a high misdemeanor." See https://www.archives.gov/milestone-documents/alien-and-sedition-acts. "[A]ny persons . . . shall be deemed guilty of a high misdemeanor" if they "unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not."
In June 1798, Thomas Jefferson (an attorney) characterized the conduct of Justice Chase and other federal judges as a “reign of witches." Jefferson emphasized that their wicked reign would "pass over" only when "the people recovering their true sight, restore their government to it’s true principles.” See https://founders.archives.gov/documents/Jefferson/01-30-02-0280.
The high misdemeanors identified by Congress in 1798 overlap with the criminal conduct that Congress identified in 18 U.S.C. Sections 241 and 242 (and other federal criminal statutes, including 18 U.S.C. 401 and 18 U.S.C. 371). Far too many so-called judicial opinions or decisions are no better than mail fraud or wire fraud, which Congress identified in 18 U.S.C. 1341 or 1343.
The way students are taught in law school (reading well-written, intelligent, insightful judicial opinions) has a peculiar effect (and maybe it was designed to have such effect) on the psychology of lawyers (and Americans, generally). We're raised up to think of judges as inherently wise and good. But too many judges too commonly commit the same crimes they say other people commit. We should apply the same standards to our so-called judges as they purport to apply to us. That is one of the most fundamental and important principles expressly included in our Constitution.
Our Constitution begins by emphasizing the crucial principle that "We the [sovereign] People" created our "Constitution" and our "Union" to "establish Justice" and "secure the Blessings of Liberty to ourselves." Article III emphasized that all federal "judicial Power" exists only "under this Constitution, the Laws of the United States, and Treaties." Article VI specifically emphasized that judges are bound by due process of law. Our "Constitution" and federal "Laws" that were "made in Pursuance" of our Constitution ("and all Treaties") are "the supreme Law of the Land" and all "Judges" everywhere "shall be bound thereby." All state and federal legislators and "all executive and judicial Officers" are "bound" to "support this Constitution." Amendments V and XIV repeatedly re-emphasized that every "person" is entitled to and subject to "due process of law."
Oh, I think the DOGE-folks' point is not (merely) to "delegitimize the courts," but to also delegitimize the Congress, in service of advancing the "unified executive" ball. Demanding impeachment of federal judges for ideological impurity is a twofer -- it not only condemns the attacked judge(s); it simultaneously inspires ire against and distrust in the impotent legislators who did nothing about it (as they (rightly) will not impeach nor convict on these grounds), leaving the Executive as the sole savior of the masses from the corruption and ineptitude of the other TWO branches.
The conduct of the Fifth Circuit's Judge Jones who attacked you (Professor Vladeck) was shameful and blatantly unconstitutional. Your (and our) “speech on public issues occupies” the “highest rung of the hierarchy of First Amendment values” and is “entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983); Snyder v. Phelps, 562 U.S. 443, 452 (2011). See also Snyder at 453 (discussing when “[s]peech deals with matters of public concern”). See also Myers at 145 quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964):
The controlling principle under our Constitution is that our “speech concerning public affairs” is … [citizens’ sovereign power, i.e.,] the essence of self-government. The First and Fourteenth Amendments” [ensure] “that debate on public issues [may] be uninhibited, robust, and wide-open, and [may] include vehement, caustic, and [even] unpleasantly sharp attacks on government and public officials.”
“[T]he people are sovereign,” and we “speak” and “use information” regarding public issues for “enlightened self-government,” including “to hold officials” (public servants) “accountable to the people.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). Accord id. at 339-341, 344-350. Our “political speech must prevail against laws" (or naked judicial retaliation or discrimination) "that would suppress it” by “design or inadvertence.” Id. at 340. “Government” (the judges) must “prove” how their conduct “furthers a compelling interest” that federal courts were given the power to address, and the judges also must prove how their conduct “is narrowly tailored to achieve that interest.” Id.
Judge Jones also should consider James Madison’s rebuke of President George Washington for publicly denouncing Democratic-Republican Societies in 1794. Madison emphasized that President Washington's "denunciation of these Societies" (associations formed to facilitate citizens' exercise of rights and freedoms secured by the First Amendment) was an "attack on the most sacred principle of our Constitution and of Republicanism."
Madison emphasized that among purported “principles" that is most "indefensible in reason" and most "dangerous in practice” is the pretense by some officials that the people (in our Constitution) somehow gave federal officials the power to use “arbitrary denunciations” to “punish what the law permits.” With such unconstitutional measures “the Govt. may stifle all censures” on its own “misdoings; for if [people exercising political power are allowed to be] the Judge [they] will never [accept that] any censures [by mere citizens are] just.”
Just a niggling comment regarding the Glossip case description, where Gorsuch's absence is described as "Gorsuch was recused...": as far as I know there's no mechanism, in the current dysfunctional regime, by which a Justice is recused other than self-recusal.
So shouldn't that phrase read "...Gorsuch recused himself..." so as to make it clear that recusal wasn't imposed on him by Roberts, or however - which would be a major paradigm shift worthy of headlines in itself?
Fascinating. The regional breakdown of impeached federal judges is: South (6,) Midwest (4,) Northeast (2,) West (1,) U.S. (1). Since 1936 all but one (Claiborne) are from southern states.
Food for thought.
Thank you for this review. Especially the history lesson on Nixon.
Lackey v. Stinnie is an extremely important decision. It means that attorney fees will not be possible in many cases in which they are essential. Justice Kagan at oral argument asserted that "someone has to pay these fees" but that is not so. Many of these cases are brought by attorneys (like me) who work for clients who cannot pay fees, so when we bring these cases, and win, and can't get fees (because after we get a preliminary injunction, the defendant sees the writing on the wall and changes its policy), our work is pro bono. Fine - but there is only so much pro bono anyone can do, and lawyers without a solid financial footing can't do any of it. So without such fees, government lawlessness will more often go unchallenged. (Of course why would anyone worry about government lawlessness? But I guess the people who wrote section 1988 did.)
What do you make of this investigation by NPR of the federal courts? https://www.npr.org/2025/03/03/nx-s1-5060215/npr-probe-shows-lack-of-accountability-around-harassment-and-bullying-by-federal-judges
It seems there's an urgent need for better oversight. A Democratic congress might undertake an investigation. A less "regal" Supreme Court might install some guardrails.
Interesting read!
Professor Vladeck, I like a lot of what you wrote, but I very respectfully submit that you do us a disservice by implying that judges should not be impeached for their official conduct (their so-called decisions, orders and opinions).
Federal judges (including on SCOTUS) are some of the worst con men I've ever seen. Their lies and violations of our Constitution are as big, bold, blatant and dangerous as Trump's. If you want an example, please see the opinions of the justices supporting their Dred Scott decision. At least some of them lied. Chief Justice Taney, for example, knew that his falsehoods about our history were false--he wrote at least part of his opinion, specifically, to pretend to rebut the truth in dissenting opinions. The independence of the judiciary (fidelity to our Constitution and independence from everything else) and our nation would have been well-served by Congress promptly impeaching and removing the justices responsible for Dred Scott as soon as the seditious leaders of some states purported to secede from the Union. For that matter, maybe Congress could have prevented some purported state secessions by starting such impeachment proceedings. Instead, hundreds of thousands of Americans died to effectively reverse Dred Scott, and for many years, America was saddled with corrupt judges writing absurd opinions to re-impose as much of the effects of slavery as they could for as long as they could. To this day, because of the mere judicial "custom" or "practice" of stare decisis, we're saddled with decisions written for such nefarious purposes (or their progeny).
If you want a more recent example, please see my comment about the justices responsible for Dobbs under "Bonus 123: The Judges' Bill Turns 100." The SCOTUS majority devoted dozens of pages to opinions written to deceive us about (and defraud us of the benefits of) some of the most fundamental and obvious principles in our Constitution.
I think Professor Vladeck has treated AOCs impeachment of Thomas a little too lightly. What she seemed to be pressing is the Ethics issues that surround both Thomas and Alito. Failure to adhere to Judicial Ethics should be a basis for impeachment but AOC seemed more interested in forcing the Supreme Court to adopt binding ethical rules rather than actually impeach Thomas and that politicizes the process in a different way and for a different purpose than Musk's claim but still is political ;t is just as well that her Motions were ignored
It seems worth noting that the current calls for impeachment are all the more hysterical given the very preliminary nature of the rulings at issue.
You raise a very fair point about "the very preliminary nature" of things. Your logic applies with equal force to condemnations of any call to impeach a judge (or impeach judges, generally). Let's see what the details are and then we should judge. It's contrary to the principles of our Constitution to say that any call for any particular impeachment is wrong just because of the political viewpoint of the speaker. We should judge judges as Article III says we should, i.e., by their "behaviour." As Alexander Hamilton put it in The Federalist No. 79, only federal “judges” who “behave properly, will be secured in their places for life.”
Impeachment of judges clearly was meant (and was understood) to be available to ensure that judges actually did support our Constitution with their decisions, orders and opinions. Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton). Having “courts composed of judges holding their offices” only “during good behavior” is a “powerful means” for ensuring “the excellences of republican government may be retained and its imperfections lessened or avoided.” Federalist No. 9 (Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison).
Thanks for the Harvard Law Rev article on judicial immunity. In US v Trump, Roberts discussed executive branch immunity but did not say much about official immunity in the judicial and legislative branches (or did I miss it?).
Could judicial immunity have been in the back of the majority justices' minds in granting "conclusive and preclusive" presidential immunity in Trump v. U.S.? That is, we're respecting the need for immunity of the head of the independent executive branch, and we're at the top of a co-equal independent branch, so our claim of immunity from congressional regulation of our ethics is also owed respect.
But didn't Madison, in Federalist Paper 51, view Congress as the dominant branch?
I'm almost certain that you're right about what at least some SCOTUS justices were thinking. It is well worth believing that, for (at least) some justices, "Trump v. US" was really in large part about "Judges vs. US." The most clear and relevant (controlling) authority is the Constitution, itself.
"We the [sovereign] People" created our "Constitution" and our "Union" to "establish Justice" and "secure the Blessings of Liberty to ourselves." Article I emphasized that We the People vested absolutely "All legislative Powers" in "Congress." Only our ELECTED representatives have the power to create federal law, which binds ALL persons under U.S. jurisdiction. Only our ELECTED representatives (not unelected judges) were given any power to create exceptions (immunity) from our laws. Every federal judge knows that.
The crucial point repeatedly re-emphasized by our Constitution (and in the ratification debates, including the Federalist Papers) regarding the power of the sovereign people to VOTE on ELECTED officials or IMPEACH and remove executive and judicial officers is the power to remove all public servants (any federal legislator, executive officer or judge) from office for usurping the power to make or enforce any purported legal authority that is contrary to our Constitution.
Article II emphasized that we vested no power in any president to commit criminal abuses or usurpations of power (we gave him no such immunity as the SCOTUS majority pretended in Trump v. US). We the People vested power in the president expressly, specifically and exclusively to "faithfully" and "to the best of" the president's "Ability, preserve, protect and defend the Constitution of the United States," including by "tak[ing] Care that the Laws be faithfully executed."
Article III emphasized that all federal "judicial Power shall extend" no further than We the People permitted "under this Constitution, the Laws of the United States, and Treaties." Article VI specifically emphasized that judges are bound by due process of law. Our "Constitution" and federal "Laws" that were "made in Pursuance" of our Constitution ("and all Treaties") are "the supreme Law of the Land" and all "Judges" everywhere "shall be bound thereby." All state and federal legislators and "all executive and judicial Officers" are "bound" to "support this Constitution." Amendments V and XIV repeatedly re-emphasized that every "person" is entitled to and subject to "due process of law."
In keeping with your reply, Article II says the "judicial Power" extends to "cases" and "controversies," not to writing their own ethics rules, which, as Prof. Tribe and I think Prof. Vladeck have argued, is more properly for Congress under the Necessary and Proper Clause, Art. I, Sec. 8, clse. 18.
SCOTUS rightly emphasizes that judges and courts have the duty to regulate themselves. That's an important point that supports your point. SCOTUS emphasizes that courts have the "inherent power" to regulate the conduct of their officers. Inasmuch as courts "inherently" have such "power," you're also necessarily right that Congress has the power (and duty) to regulate the conduct of all federal judges, including SCOTUS justices.
Article I (Section 8) hardly could be more clear or emphatic that "Congress shall have Power" to "make all Laws which shall be necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Article III expressly emphasized that the "judicial Power of the United States, shall be vested," in part, "in one supreme Court." It also emphasized that all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour." So the scope of the powers of Congress necessarily includes addressing the foregoing.
Article VI also expressly speaks to the ability of Congress to regulate the conduct of "all executive and judicial Officers," including by enacting legislation that requires the "Oath or Affirmation" of every federal judge "to support this Constitution." That is what Congress did in 5 U.S.C. 3331 and 28 U.S.C. 453.
Every SCOTUS justice does and must swear or affirm both oaths. All SCOTUS justices also are governed by, e.g., 28 U.S.C. 455. SCOTUS also enacted criminal statutes that govern SCOTUS justices, including, e.g., 18 U.S.C. 241, 242, 371 and 401. Justice Alito lied blatantly when he declared that nothing in our Constitution authorized Congress to regulate the conduct (or misconduct) of SCOTUS justices.
Yes. I think Roberts' subtext is: Within its respective sphere of (constitutional) authority, each branch is independent (which in turn demands immunity). Unfortunately this leaves only trust and respect, or impeachment, or - in the case of the exec and leg branches - the ballot box. See Scott A. Keller, Qualified and Absolute Immunity at Common Law, Stanford Law Review, Vol 73, June 2021. At 1157: "... Some form of judicial immunity 'is as old as the law..." Citing Randall v Brigham, 74 U.S. (Wall.) 523, 536 (1869).
Two other principles that also can claim lineage at least as long as judicial immunity and the law simply don’t exist under our Constitution. First and foremost was the concept of the sovereignty of somebody or some body of men above the people (king, queen or Parliament). Second to and supporting the foregoing was the conception of people as subjects.
Our Constitution repeatedly and expressly emphasizes the opposite of both the foregoing concepts. The people are sovereign; all officials are public servants; representatives whom we choose (elect) make laws to protect us (including from abuses of official power); our Constitution and federal law (and treaties) are the supreme law of the land; and every person is entitled to and subject to due process of law.
There is no support whatsoever in our Constitution for the pretense that any public servant is above any federal criminal law. The power of every public servant addressed in our Constitution is limited to the power that We the People vested in such servant. Section 1 of Articles I, II and III (referring to powers vested by us in our public servants) and Amendment X (referring to powers delegated by our Constitution) say that explicitly.
Federal judges cannot exempt the president from federal criminal law, in part, because We the People could not even delegate to judges such power. Not even We the sovereign People are exempt from federal criminal law, so we can’t exempt anyone else (including the president). The math is simple and clear. The pretenses to the contrary by the SCOTUS majority in Trump v. US were a complete sham and utterly frivolous.
It was only with great difficulty and reluctance that I came to acknowledge (and feel the need to expose) that black-collar crime always has been and always will be a timely topic. The words and deeds, not only of Justice Samuel Chase, but also of current SCOTUS justices, helped proved that point compellingly. So did the writing of the Founders of our nation and the Framers of our Constitution.
One of the most interesting and intriguing expressions I've seen in any SCOTUS opinion was "judicial despotism." SCOTUS justices got that expression from the writing of Alexander Hamilton (an attorney) in the Federalist Papers writing about the need to safeguard Americans from our so-called judges.
Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Hamilton). Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton). Having “courts composed of judges holding their offices” only “during good behavior” is a “powerful means” for ensuring “the excellences of republican government may be retained and its imperfections lessened or avoided.” Federalist No. 9 (Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison).
In a letter in January 1787, Thomas Jefferson (an attorney) expressed a similar concern. See https://press-pubs.uchicago.edu/founders/tocs/amendI_speech.html (No. 8). “If” the people “become inattentive” to “public affairs,” then “[legislators], judges and governors shall all become wolves.” If the people fail to govern their governors, then “under pretence of governing” our so-called governors “all” will act like “wolves” and attack people like “sheep.” The freedom of speech and press is “the only safeguard of the public liberty.” “The people” must be “censors of their governors” to “keep” public servants “to the true principles of their institution.”
Justice Chase was impeached by the House and almost convicted by the Senate because he pretended to enforce Section 2 of the Sedition Act of 1798 by committing crimes in Section 1 of the same law. Section 1 identified conduct that Congress and President John Adams concluded should constitute "a high misdemeanor." See https://www.archives.gov/milestone-documents/alien-and-sedition-acts. "[A]ny persons . . . shall be deemed guilty of a high misdemeanor" if they "unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not."
In June 1798, Thomas Jefferson (an attorney) characterized the conduct of Justice Chase and other federal judges as a “reign of witches." Jefferson emphasized that their wicked reign would "pass over" only when "the people recovering their true sight, restore their government to it’s true principles.” See https://founders.archives.gov/documents/Jefferson/01-30-02-0280.
The high misdemeanors identified by Congress in 1798 overlap with the criminal conduct that Congress identified in 18 U.S.C. Sections 241 and 242 (and other federal criminal statutes, including 18 U.S.C. 401 and 18 U.S.C. 371). Far too many so-called judicial opinions or decisions are no better than mail fraud or wire fraud, which Congress identified in 18 U.S.C. 1341 or 1343.
The way students are taught in law school (reading well-written, intelligent, insightful judicial opinions) has a peculiar effect (and maybe it was designed to have such effect) on the psychology of lawyers (and Americans, generally). We're raised up to think of judges as inherently wise and good. But too many judges too commonly commit the same crimes they say other people commit. We should apply the same standards to our so-called judges as they purport to apply to us. That is one of the most fundamental and important principles expressly included in our Constitution.
Our Constitution begins by emphasizing the crucial principle that "We the [sovereign] People" created our "Constitution" and our "Union" to "establish Justice" and "secure the Blessings of Liberty to ourselves." Article III emphasized that all federal "judicial Power" exists only "under this Constitution, the Laws of the United States, and Treaties." Article VI specifically emphasized that judges are bound by due process of law. Our "Constitution" and federal "Laws" that were "made in Pursuance" of our Constitution ("and all Treaties") are "the supreme Law of the Land" and all "Judges" everywhere "shall be bound thereby." All state and federal legislators and "all executive and judicial Officers" are "bound" to "support this Constitution." Amendments V and XIV repeatedly re-emphasized that every "person" is entitled to and subject to "due process of law."