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Wednesday, March 19, 2025
"in such inferior Courts as the Congress may from time to time ordain and establish"
I expect flacks for an authoritarian administration to denigrate the power of trial courts or the administration's obligation to obey. I expect better from the head of the opposition party (who has a J.D.), but maybe I shouldn't, because the lesson of the past week is that Chuck Schumer sucks at his job--generally and in the current moment.
But for those in the cheap seats:
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.
Inferior-court judges wield as much of the judicial power as SCOTUS and enjoy the same structural independence as SCOTUS, subject to hierarchical review within the judicial system. Impeaching lower-court judges for their decisions is as problematic as impeaching justices for their decisions. Ignoring unstayed-and-unappealed lower-court orders is as problematic as ignoring a final SCOTUS opinion (which really triggers a final district court order).
SCOTUS has original jurisidiction in an unextendable universe of four cases--"affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." That means cases must pass through lower courts--including single-judge district courts; if they do not, they never reach SCOTUS. So to reduce the threat to the judiciary to that last stage--and to say we are in crisis only if the Administration disobeys the last stage--willfully misunderstands the process.
In some ways, the current conversation follows from the common misunderstanding of Cooper. Everyone views the case as the Court demanding that everyone follow its precedent, Brown. In fact, Cooper arose from Arkansas efforts to avoid a district court judgment in the unique litigation over desegregating Little Rock schools. This might be clearer had SCOTUS written that opinion to less emphasize judicial supremacy and more to emphasis the judicial process. Instead, Cooper makes SCOTUS the center of it all--allowing Schumer stupidly and Leaviit intentionally to treat lower-court judges as unimportant and powerless.
Posted by Howard Wasserman on March 19, 2025 at 10:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink
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