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  • Writer's picturePhilip Drucker

Communique "Defund The SCOTUS!"

“Defund The SCOTUS!”

Recently, a great deal of the public’s attention has been paid toward the Constitutional requirements for appointing and yes, removing members of the Federal Judiciary. With no place better to start, let’s look at Article III Section 1, often referred to as the first of three judicial vesting clauses.

Clause 1: Vesting of judicial power and number of courts

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. 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.

If we break down Clause 1, we find that the passage grants to Congress the right to establish and maintain both a federal supreme Court and inferior Courts in its own time frame and although unspoken, its infinite wisdom.

The Clause goes on to include guidance and instruction regarding the requirement that to maintain their office, judges must practice good behavior, and if they do, their salaries shall not be diminished during their time on the bench.

It must have seemed all so simple when on September 24, 1789 during the first session of the First Congress, the Founding Fathers & Friends passed the aptly named Judiciary Act of 1789, officially titled "An Act to Establish the Judicial Courts of the United States," and shortly thereafter signed into law by President George Washington, regarding issues related to Congress’ Article III power and authority to create and maintain what we know today as our modern federal Court system.

Essentially, the Congress formally established our SCOTUS while adding the requirement of one Chief Justice to preside over the remaining Associate Justices who would fill out the Court. The remainder of the Act was to spell out the jurisdictional limitations Congress imposed upon the inferior federal courts for both the district and circuit courts as well as to define and help sort out the boundaries between the federal and state Court judicial systems.

As it turned out, the biggest political dust-up the ACT addressed was whether the active justices on the SCOTUS had to remain as Judges for the appellate, circuit courts. At the time the Congress said no, but as I mentioned, it was a politically sensitive issue at the time that was about to get a whole lot worse.

In the Presidential election of 1800 the Democratic-Republican and generally strong States rights advocate Thomas Jefferson defeated the stronger central government leaning Federalist incumbent John Adams. The two parties were not likely to see eye to eye on the proper role of the nascent Federal court system. And they didn’t.

In 1801, the Federalists still held the majority in Congress, and during their lame duck session passed the you guessed it, Judiciary Act of 1801 that favored the outgoing national centric Federalist Party. The provisions of the Act included expanded Federal jurisdiction over the Courts, eliminated a SCOTUS seat so that Jefferson would have to wait for two and not one Justice to retire, and removed the requirement justices of their circuit court responsibilities with no less that two heavyweights, Adams and Jefferson on opposite sides going head to head. It’s 1801. Let the judicial games begin.

The real fireworks started when pursuant to the Act the Federalists abolished the existing smaller circuit court system and established six new circuit courts requiring sixteen new judgeships. With time running out Adams hastily filled all the lifetime positions with Federalists, with many of them never facing any proper vetting, some overtly partisan, and some clearly not qualified (starting to sound familiar?). The appointed Judges soon came to be known as the “midnight judges”.

Short version? When TJ and the Democratic-Republicans gained a majority in Congress the following year, they repealed the 1801 act and abolished the new judgeships. It also made clear the SCOTUS justices/judges were going to have to ride circuit, to which they dutifully did so for the next ten years. Point for Jefferson.

Also of note during this time was the fate of roughly forty Justices of the Peace. One such Justice of the Peace who did not receive his commission was a fellow by the name of Marbury, as in Marbury v. Madison fame? The guy who while losing his case, helped the SCOTUS claim the power to judicial review? A right not specifically identified in the Constitution? That’s the one.

With Team Jefferson in command, they enacted their own replacement for the 1801 act with you guessed it, The Judiciary Act of 1802. As part of the Act, get this, Congress cancelled an entire Judicial Session, stating the SCOTUS didn’t need to meet twice that year and that one would do very nicely for the time being. Did I mention that by cancelling the next scheduled session the SCOTUS would not be able to weigh in on the constitutionality of the changes made to the 1801 Act by the changes made under its replacement, the Act of 1802.

Could Congress do that? Well, they did. This is where it gets a bit interesting. Could they do it again? Like now for instance? Did I also mention that in the original Article III, there is no textual requirement that Congress fund the SCOTUS? You know, Defund the SCOTUS type stuff? Well again, we won’t be sure, until someone tries if you know what I mean and I’m sure you do.

Oh, and just for clarity, all of Adams midnight judges were kicked to the curb. So, when it comes to all the rushed, partisan and clearly irresponsible appointments made by Mitch McTraitorTotsFishy&FoulSmellingMockTurtleHeadSoupOfDoom&Gloom fiated while ignoring passing any legislation over the last several years? Mr. Biden, Nancy, Chuck, if you are listening, we won’t know till we try…

If right about now you are wondering about similarly challenging and impeaching a sitting SCOTUS justice, starting with Beer Brett and Amy “the Joke” Barrett in her Crimson Robe playing Supreme Court Justice for the time being reasonable targets for impeachment proceedings?

If we move ahead to March 26, 1804 impeachment proceeding we brought in an effort by Congress to impeach sitting SCOTUS Justice Salmon P. Chase who just so happened to be an unapologetic and outwardly partisan of the Federal persuasion was charged with eight counts mostly centering upon the “seditious” intent he had exhibited in his spirited debates against overturning the Judiciary Act of 1801.

Pursuant to a Grand Jury indictment, the House voted to impeach, but on March 1, 1805 the Senate could not find 2/3rds of the vote to convict on any of the eight charges and Chase was found not guilty on all counts. (Familiar?)

So, is it possible…well, we know whose ball is in that Court, don’t we? BTW Amy’s tenuous integrity rating, if she had any, would for the average Associate Justice of the past been severely damaged, if not beyond repair by her blatant disregard for the rules requiring Justices to recuse themselves from hearing cases in which thy MIGHT have a conflict of interest. But not Amy.

In a recent case involving the Koch funded Americans for Prosperity, a not so secret dark money donor who is fighting a California disclosure requirement for scum bags like himself, who poured a ton of money into Amy’s nomination process, all but assuring her successful confirmation, she sees no lapse of morality and intends to hear the case.

Oh, you will hear that federal justices do not have to follow federal law and other guardrails of conduct for all our representatives we need in place, true, but there is this thing, you might almost call it an internal memo or guideline much like the one relied on by Bill Barr in the DOJ not having the power to criminally charging a sitting president (also due for a DOJ rewrite wouldn’t you say?) called the Code of Conduct for US Judges, that embodies the maxim of nemo judex in causa sua or in plain old English, nobody should be a judge of his own case.

Problem is the SCOTUS claims to be exempt from these standards of ethical conduct as well. So, why don’t we fix that and fix our dirty money laundering chamber maid Amy problem as well?

I know this is a big ask, but can we get there? I think we can. Who’s in?

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