We saw in the news today that President Biden wants legislation to
impose an 18-year term limit on each Justice.

Leaving aside the fact that the Republican majority in the House
would never pass that bill, how is it even Constitutional? Article
III section 1 says "The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour", which has
always been interpreted as "for life".

The only grant to Congress of authority over the Court that I could
find is this from Article III section 2: "In all Cases affecting
Ambassadors, other public Ministers and Consuls, and those in which a
State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the Congress
shall make." But I think that pretty clearly limits the "Exceptions"
to which kinds of cases can be taken, and the "Regulations" to those
that affect the Court as a whole, not individual Justices.

The President said he had been consulting with Constitutional
scholars, so they must have found a loophole. What is it?

--
Stan Brown, Tehachapi, California, USA https://BrownMath.com/
Shikata ga nai...

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In misc.legal.moderated, on Mon, 29 Jul 2024 18:50:25 -0700 (PDT), Stan
Brown <[email protected]> wrote:

We saw in the news today that President Biden wants legislation to
impose an 18-year term limit on each Justice.

Leaving aside the fact that the Republican majority in the House
would never pass that bill, how is it even Constitutional? Article
III section 1 says "The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour", which has
always been interpreted as "for life".
.....
The President said he had been consulting with Constitutional
scholars, so they must have found a loophole. What is it?

I've heard, but it's from radio so I rarely know who is talking, that
judges once confirmed get to be judges for good behaviour/life, but that doesn't mean they get to sit ont he USSC all that time. They can
become Court of Appeals judgges after 18 years.

Since this is not a punishment but a regulation and since it does not
involve a crime, doesn't that mean it can apply to judges who are on the
USSC now? Sure hope so.

--
I think you can tell, but just to be sure:
I am not a lawyer.

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On 7/29/2024 6:50 PM, Stan Brown wrote:

We saw in the news today that President Biden wants legislation to
impose an 18-year term limit on each Justice.

Leaving aside the fact that the Republican majority in the House
would never pass that bill, how is it even Constitutional? Article
III section 1 says "The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour", which has
always been interpreted as "for life".

The only grant to Congress of authority over the Court that I could
find is this from Article III section 2: "In all Cases affecting
Ambassadors, other public Ministers and Consuls, and those in which a
State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the Congress
shall make." But I think that pretty clearly limits the "Exceptions"
to which kinds of cases can be taken, and the "Regulations" to those
that affect the Court as a whole, not individual Justices.

The President said he had been consulting with Constitutional
scholars, so they must have found a loophole. What is it?

I think that Biden is off his rocker.
"The Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour..."
Demoting them to another court would be changing their office.

There are things that Congress can do to make the Justices aware of
their displeasure. Congress cannot cut their pay, but they can stop
giving them raises and let inflation take its course. (Of course, the
justices might rule that's a pay cut... talk about conflict of
interest...) Congress can also stop or reduce payments for security,
electric power, clerks, etc.

Of course, the simplest way of "solving" the problem is to add four more justices. But that leads to problems that have been discussed at length
and I don't think I need to rehash them.

Still, it might be worth doing. It might even lead to a compromise,
e.g., a restoration of the filibuster for SC Justices to force
Presidents to choose moderate Justices. Or an amendment to put a term
limit on SCOTUS justices. Perhaps with a proviso that if one President
does not appoint any justices, the next President of the opposite party
shall also not be allowed to appoint any.


--
I do so have a memory. It's backed up on DVD... somewhere...

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"Stan Brown" wrote in message news:[email protected]...

We saw in the news today that President Biden wants legislation to
impose an 18-year term limit on each Justice.

Leaving aside the fact that the Republican majority in the House
would never pass that bill, how is it even Constitutional? Article
III section 1 says "The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour", which has
always been interpreted as "for life".

The only grant to Congress of authority over the Court that I could
find is this from Article III section 2: "In all Cases affecting
Ambassadors, other public Ministers and Consuls, and those in which a
State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the Congress
shall make." But I think that pretty clearly limits the "Exceptions"
to which kinds of cases can be taken, and the "Regulations" to those
that affect the Court as a whole, not individual Justices.

The President said he had been consulting with Constitutional
scholars, so they must have found a loophole. What is it?

I don't believe it is constitutional for reasons others have articulated.
But it does lead to an interesting question. If the law is passed, it will almost certainly be appealed and probably find its way to the Supreme Court. Has the Court ever before had to rule on a law involving the Supreme Court?

I think any effort to impose term limits on the Court will require a constitutional amendment, just as was required to limit presidential terms.
I don't believe we will see that in our lifetime.

--

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On Tue, 30 Jul 2024 11:55:32 -0700, Rick wrote:

I think any effort to impose term limits on the Court will require a constitutional amendment, just as was required to limit presidential
terms. I don't believe we will see that in our lifetime.

I dunno - the US managed to ban and unban alcohol pretty quickly.

<leaves door open for debate on 2nd amendment and runs away ....>

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It appears that Stan Brown <[email protected]> said:

The only grant to Congress of authority over the Court that I could
find is this from Article III section 2: "In all Cases affecting
Ambassadors, other public Ministers and Consuls, and those in which a
State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the Congress
shall make." But I think that pretty clearly limits the "Exceptions"
to which kinds of cases can be taken, and the "Regulations" to those
that affect the Court as a whole, not individual Justices.

The Congress sets the rules for the way that Federal courts work,
subject to the rule about original jurisdiction for a few cases and
appellate for everything else. Until fairly recently, the rules
changed frequently. Until 1891 each justice was a member of one of the appellate courts and "rode circuit" which was not fun in the
pre-railroad era. The number of justices has increased and decreased,
and the rules about what cases the court takes have changed a lot.
Until the 1925 act, the court had to take every case appealed from
the next lower court, which gave them a huge docket. They still had
to take appeals from state supreme courts until 1988.

If Congress wanted, it could pass a law that says that a new justice
is appointed every two years, the nine most recently appointed
justices are a panel that hears appellate cases, and the entire court
hears the few original jurisdiction cases. The judges are still
appointed for life, but they don't get to do quite as much judging
as they do now.

Compared to most countries, SCOTUS is a very strange court, being both
very small and having almost complete discretion about what cases it
hears. In Germany, the Justice court that hears appeals has 153
members who sit in panels, sort of like the way the US circuit courts
do. The French Court of Cassation has 85 trial judges and 40 deputy
judges divided into six divisions by topic, sitting in panels. The
Supreme Court of Spain has 79 judges, in five chambers sitting in panels.

Another possibility would simply be to appoint a new justice every two
years, and say that the court sits in panels of 3 or 5 with the option
to sit en banc, again like the circuit courts. That would make things
a lot more stable, since a single judge could only affect part of the decisions.

--
Regards,
John Levine, [email protected], Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

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On Tue, 30 Jul 2024 11:55:32 -0700 (PDT), Rick wrote:

I don't believe it is constitutional for reasons others have articulated.
But it does lead to an interesting question. If the law is passed, it will almost certainly be appealed and probably find its way to the Supreme Court. Has the Court ever before had to rule on a law involving the Supreme Court?

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). It wasn't the only
time, but I think it was the first. The particular law in question
was the Judiciary Act of 1789, the first year of the Constitution's
operation.

<https://en.wikipedia.org/wiki/Marbury_v._Madison>

"Decided in 1803, Marbury is regarded as the single most important
decision in American constitutional law. It established that the U.S. Constitution is actual law, not just a statement of political
principles and ideals."

--
Stan Brown, Tehachapi, California, USA https://BrownMath.com/
Shikata ga nai...

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Stan Brown <[email protected]> wrote:

Rick wrote:

I don't believe it is constitutional for reasons others have
articulated. But it does lead to an interesting question. If the law
is passed, it will almost certainly be appealed and probably find its
way to the Supreme Court. Has the Court ever before had to rule on a
law involving the Supreme Court?

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). It wasn't the only
time, but I think it was the first. The particular law in question
was the Judiciary Act of 1789, the first year of the Constitution's operation.

<https://en.wikipedia.org/wiki/Marbury_v._Madison>

"Decided in 1803, Marbury is regarded as the single most important
decision in American constitutional law. It established that the U.S. Constitution is actual law, not just a statement of political
principles and ideals."

The current members of the Court apparently disagree with that
proposition. While the Constitution says that insurrectionists can't
serve in Congress, the Court said that provision is not self executing,
and legislation is required to impliment it. That decision is clearly ridiculous and emblematic of a Court that doesn't care for what the law actually is, but what they would like it to be.

--
Stu
http://DownToEarthLawyer.com

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On Mon, 29 Jul 2024 18:50:25 -0700 (PDT), Stan Brown wrote:

We saw in the news today that President Biden wants legislation to
impose an 18-year term limit on each Justice.

Leaving aside the fact that the Republican majority in the House
would never pass that bill, how is it even Constitutional?

Following up on responses from three persons ...

On Tue, 30 Jul 2024 17:02:16 -0700 (PDT), Jethro_uk wrote:

I dunno - the US managed to ban and unban alcohol pretty quickly.

True, but there was general consensus about enacting prohibition. As
for repealing prohibition, I _suspect_ there was not general
consensus, and that's why the 21st amendment lets states keep
prohibition if they want to. (Section 2 of the 21st says "The
transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby
prohibited." And states have always had the power to regulate liquor
that doesn't cross state lines, under their general "[police
powers".)

On Tue, 30 Jul 2024 17:03:12 -0700 (PDT), John Levine wrote:

If Congress wanted, it could pass a law that says that a new justice
is appointed every two years, the nine most recently appointed
justices are a panel that hears appellate cases, and the entire court
hears the few original jurisdiction cases. The judges are still
appointed for life, but they don't get to do quite as much judging
as they do now.

Thanks, John -- I think yours is the only followup that actually
answered my question. I understand yours is a theoretical
possibility, probably different from what the President's experts
gave him, but yours at least proves that a way exists to set term
limits via legislation rather than amendment.

On Wed, 31 Jul 2024 07:34:01 -0700 (PDT), Stuart O. Bronstein wrote:

Stan Brown <[email protected]> wrote:

[quoting Wikipedia]

"Decided in 1803, Marbury is regarded as the single most important
decision in American constitutional law. It established that the U.S. Constitution is actual law, not just a statement of political
principles and ideals."

The current members of the Court apparently disagree with that
proposition. While the Constitution says that insurrectionists can't
serve in Congress, the Court said that provision is not self executing,
and legislation is required to impliment it. That decision is clearly ridiculous and emblematic of a Court that doesn't care for what the law actually is, but what they would like it to be.

Agreed, Stuart. I nearly wrote something like that in my article, but
lacked the courage of my convictions. :-)

--
Stan Brown, Tehachapi, California, USA https://BrownMath.com/
Shikata ga nai...

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According to Stan Brown <[email protected]>:

On Tue, 30 Jul 2024 17:02:16 -0700 (PDT), Jethro_uk wrote:

I dunno - the US managed to ban and unban alcohol pretty quickly.

True, but there was general consensus about enacting prohibition. As
for repealing prohibition, I _suspect_ there was not general
consensus, and that's why the 21st amendment lets states keep
prohibition if they want to. ...

It was a lot more complicated than that. Americans in the 1800s drank
a stupendous amount, by some reports seven gallons of alcohol per year
which is four drinks a day for every man, woman, and child. Given how
polluted most of the water was, it was often less dangerous than
water, but there was a lot of drunkenness and consequent abuse and
violence.

Until WW I, the Federal government got over 30% of its revenue from
alcohol excise taxes, so prohibition would have been a financial
disaster. In 1913 the 16th amendment allowed income taxes, of which
there were a lot during WW I. Also, the German brewing lobby
disappeared because Germans were anti-American. (What we call French
toast was German toast until then.) There was some temporary
war-related prohibition during the war, so in 1919 the stars aligned
to allow the 18th amendment to be passed, but only after decades of
work by its advocates.

It was obvious by 1930 that prohibition was a failure. While the
average amount people drank did go down, the law was widely ignored,
and organized crime profited from illegal booze sales. But the major
funding for the repeal came from the richest man in the country, the reactionary Pierre S. du Pont who imagined that if the alcohol excise
returned, they would repeal the hated income tax. Well, not quite. The
state authority in the 21st amendment was a sop to the remaining prohibitionists. If you wanted your county to be dry, well, OK,
leading to jokes that a polite Baptist does not greet a fellow church
member who he meets in the liquor store across the county line.

The definitive source for all this is "Last Call: The Rise and Fall of Prohibition" by Daniel Okrent.

--
Regards,
John Levine, [email protected], Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

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