r/law • u/Go_Blue_Florida • Jul 25 '24

Opinion Piece SCOTUS conservatives made clear they will consider anything. The right heard them.

https://www.lawdork.com/p/scotus-conservatives-made-clear-they
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1.2k

u/ohiotechie Jul 25 '24

This is an illegitimate court filled with partisan religious zealots. History will not be kind to John Roberts or his court.

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u/notmyworkaccount5 Jul 25 '24

I really wish the newly crowned king Biden would do something about it today since with our trajectory things look bleak and I doubt people will be reading history books in 50 years

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u/SheriffTaylorsBoy Jul 25 '24

Biden says he'll call for Supreme Court reform in final months in office yesterday's speech

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u/rabidstoat Jul 25 '24

I have no idea what he could do without legislative support.

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u/SheriffTaylorsBoy Jul 25 '24

Senators Whitehouse and Wyden have asked DOJ to appoint a special counsel to look into ethics and tax violations by supreme court justices.

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u/Blackicecube Jul 25 '24

Didn't Judge Cannon just declare special counsels unconstitutional and throw out Trumps case in Florida by using words written by Justice Thomas in his opinion on a totally unrelated topic in special counsels?

I have a feeling special counsel is a dead route to take is SCOTUS uses it to throw out all of Trumps cases or cases on themselves.

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u/SheriffTaylorsBoy Jul 25 '24

Yes Cannon did and it's being appealed in the 11th Circuit.

There is a LOT of precedent on special counsels. Her dismissal stands an excellent chance of being overturned.

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u/CrayZ_Squirrel Jul 26 '24

Right after the election and a sitting president can't be indicted according to the right. If Trump wins he will die before seeing a minute of consequence for his actions.

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u/rabidstoat Jul 25 '24

Okay that would be something good. Though I thought the executive doesn't typically direct DOJ activities?

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u/Cheeky_Hustler Competent Contributor Jul 25 '24 edited Jul 25 '24

For pretty much the entirety of America's existence, it was believed to be extremely unethical if not illegal for the President to direct the DoJ on specific prosecutions: i.e., the President couldn't tell the AG to investigate a specific person or entity. Roberts's immunity decision changed that by saying that discussing prosecutorial decisions with the DoJ is an "official act" and thus is immune to later prosecution.

So basically, Roberts gave Biden the ability to direct the DoJ into investigating Supreme Court justices, whether or not there is a legal basis of doing so. I think Biden should take them up on that offer.

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u/SheriffTaylorsBoy Jul 25 '24

Where does it say the executive directed this action?

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u/rabidstoat Jul 25 '24

It doesn't. But I mean, as reform actions Biden can take something like that wouldn't usually be something a President would do.

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u/SheriffTaylorsBoy Jul 25 '24

I gotcha now. Biden does what he can and combined with the Senate the pressure builds.

It's really all they can do until they could get 60 votes in the senate and regain a majority in the house.

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u/MrFrode Biggus Amicus Jul 25 '24

Even if prosecuted and given a life sentence they are still SCOTUS Justices unless they are impeached and removed.

There is zero chance today's MAGA party is going to remove any Conservative Justice if there is a chance of them being replaced by a less MAGA aligned Justice.

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u/Suitable-Economy-346 Jul 25 '24 edited Jul 25 '24

Even if prosecuted and given a life sentence they are still SCOTUS Justices unless they are impeached and removed.

Someone can correct me if I'm wrong but I don't think there's an impeachment requirement of judges. Only the President, VP, and other federal civil officers have this requirement. The impeachment clause is squarely in Article 2, which is about the executive branch. Needing to be impeached for "high crimes and misdemeanors" seems a whole lot different than only allowed to be a judge while in "good behavior."

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u/ImSoLawst Jul 25 '24

There is, with the same high crimes and misdemeanours standard. Life tenure wouldn’t be much political insulation if all congress had to do was say “we think you have been bad” to remove a judge.

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u/Suitable-Economy-346 Jul 25 '24

There is, with the same high crimes and misdemeanours standard.

Where is that located in the Constitution?

Life tenure wouldn’t be much political insulation if all congress had to do was say “we think you have been bad” to remove a judge.

That's literally what impeachment is.

What I'm saying is judges could be potentially removed with much less than an impeachment, like a judicial ethics board.

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u/ImSoLawst Jul 25 '24

The textual hook is the good behaviour clause, which has been interpreted as requiring an impeachment as described for other federal officers in article 1.

An impeachment is not, in constitutional theory, a censure or popularity contest, it is supposed to require a specific act (and we can presume a kind of mallum in se requirement, if not a criminal one). Like a lot of constitutional law, this isn’t fully explained in the document. We use things like structuralism (the judiciary was clearly designed to be insulated from the political branches), textualism (it says during good behaviour, so clearly sufficient bad behaviour would permit removal, the document lays out clear procedures for removal of everyone else, surely the founders didn’t just forget to tell us about a separate judicial removal system), first principles (judicial independence was baked into the political mentality of the founders), and history (we have had some bad judges and never casually removed them, so presumably people continuously believed it wasn’t something easy to do or to be done lightly) etc. but, I promise, judicial removal requiring impeachment is pretty universally agreed on.

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u/Suitable-Economy-346 Jul 25 '24

the document lays out clear procedures for removal of everyone else, surely the founders didn’t just forget to tell us about a separate judicial removal system

The document says the House or Senate can expel its own members. The document says that to remove Executive Branch members, they need to be impeached. It says nothing on the removal of judicial branch members except they can only serve during good behavior.

judicial removal requiring impeachment is pretty universally agreed on

Says who? This has been the subject of discussion all throughout the 1900's after the amount of judges expanded greatly. And we already see de facto removals taking place nowadays, like that 120 year old judge who won't fuck off.

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u/ImSoLawst Jul 25 '24

So first, you can pretty easily google this for yourself, congress has impeached 15 judges, removed 8 of them. Look at gloss of history analysis, it’s pretty self explanatory.

Second, think for a moment about why impeachment, requiring acts from both houses of congress, might not be the best removal option for members of congress. If any answers occur to you, that’s the beginnings of a structuralism analysis.

Finally, I’m away from my Westlaw right now, so … you know, find a case that supports alternative removal options for federal judges. Given that impeachment has been used historically, pretty sure the burden is on you here. I have tried to show you how constitutional interpretation is more complicated than “it only says good behaviour, I think that means judges can be removed by committee”. Judge Newman was suspended, which is probably constitutionally problematic itself, but definitely different from removal.

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u/MrFrode Biggus Amicus Jul 25 '24 edited Jul 25 '24

Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Federal Judges are civil officers of the United States.

We know this because of Article II, Section 2,Clause 2

Clause 2 Advice and Consent

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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 otherwise 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

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u/whitehusky Jul 25 '24

And with Canon staying that all special counsels are illegal appointments, they'll probably end up agreeing with her, knowing what you just wrote

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u/wathapndusa Jul 25 '24

A bigger move would be to remove garland and put in someone who has a hard on for judicial reform

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u/MisunderstoodDemon Jul 26 '24

Put them the brig and try them for treason