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Saturday, January 25, 2020

On Disappointed Presidents

President Trump’s response to impeachment proceedings seems more defiant than regretful. The President has expressed regret in other areas, however.  He “may[]” regret his appointment of Jerome Powell as Chair of the Federal Reserve. The President may also have reason to be disappointed in Chief Justice Roberts, a Republican appointee who has publicly countered the President’s attack on the independence of federal judges. Any disappointment suffered by the President would reflect Powell’s and Roberts’ independence and ability to remain in office while making decisions contrary to the President’s wishes. The independence of administrative agencies such as the Fed has been controversial. The independence of the federal judiciary is established by Article III of the Constitution.  

Supreme Court Justices have a long history of casting independent votes that disappoint the presidents who appointed them. President Eisenhower declared Justice Brennan one of his greatest “mistakes.” A disappointed President Theodore Roosevelt complained that he “could carve out of a banana a Judge with more backbone than” Justice Holmes. Historically, Justices’ voting records in non-unanimous cases reflect a strong tradition of independence, though there is reason to think that presidents have enhanced their ability to appoint ideologically compatible Justices in recent decades. As noted by Lee Epstein and Eric Posner, we may be on the cusp of a new era in which Justices’ votes align with the parties of their appointing presidents more than ever before. It seems unlikely that the Court will ever have another Justice like John Paul Stevens, a Republican appointee who generally sided with the liberal wing of the Court, or even a more moderate Republican appointee like Justice Kennedy.

Any shift to a more political court would still depend on Chief Justice Roberts, who may have a broader commitment to the Court’s institutional independence. And perhaps Justice Gorsuch’s commitment to originalism and textualism will lead to unexpected results in certain cases. The magnitude of any change would also depend on the types of cases that the Court chooses to decide. A Term in which the Court overruled Roe v. Wade and declared vast swaths of the administrative state unconstitutional would be very different than one in which none of these things occurred. 

Notwithstanding any increase in politicized voting, presidents ultimately lack power to create vacancies that allow them to appoint new Justices to the Court. Article III’s life tenure provisions instead allow Justices to choose when they will retire. In recent decades many Justices have chosen to remain on the bench and pass up politically opportune retirements. Justice Ginsburg declined to retire when President Obama was in office, and last year Justice Thomas declined to retire during President Trump’s first term in office. (Because it is an election year, none of the Justices are likely to retire voluntarily this year.) Both of these possible retirements would have maximized Justice Ginsburg’s and Justice Thomas’s odds of being replaced by like-minded successors who would remain on the Court for many decades to come. Justices’ autonomous retirement decisions present another facet of judicial independence that one would not expect to change any time soon.

Posted by Christine Chabot on January 25, 2020 at 09:48 PM in Constitutional thoughts, Law and Politics | Permalink

Comments

By the way, one can reach " Hawaii " here:

https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf

Posted by: El roam | Jan 26, 2020 10:42:02 AM

Important issue, outrageous as well. Those " disappointed" republicans, have forgotten the issue of immigrants ? The favorite issue of Trump himself. The case of " hawaii", chief justice Roberts, sided with Trump and republicans. This is senseless simply. He who would try to identify political bias, shall only get more and more confusion. It doesn't work so. Even in the cencus case, they don't and can't realize what is all about. They don't understand the ruling. This is amazing.

And article III, doesn't represent independence. Tenure for whole life, can hardly represent such notion. This is nonsense. Let me show you, what is real Independence, explicitly so prescribed:

Here I quote, from the Turkish constitution:

CHAPTER THREE. Judicial Power

I. General provisions

A. Independence of the courts

Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, laws, and their personal conviction conforming with the law.

No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.

No questions shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.

Legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution.

This is independence, prescribed so. Article III, is not even joke in this regard.

Thanks

Posted by: El roam | Jan 26, 2020 7:03:32 AM

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