Bench Memos

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Gingrich’s Awful Proposal to Abolish Judgeships—Part 3


I’ve never studied Stuart v. Laird, and perhaps I’m misreading it now, but unlike Matt, I’m not persuaded that the ruling even “tacitly” approves of the 1802 Repeal Act’s termination of the service of judges who were lawfully appointed under the 1801 act. As the Court puts it, the case involves “nothing more than the removal of the suit brought by Stuart against Laird from the court of the fourth circuit to the court of the fifth circuit.” Thus, the Court seems to have separated the question whether the cause could be transferred from an abolished court to a newly created court (the question it addressed) from the question whether the service of a judge sitting in an abolished court could constitutionally be terminated (a question I’m not persuaded it addressed, implicitly or otherwise). 

But if Stuart v. Laird indeed stands for the proposition that Congress can terminate the service of a judge by abolishing the judgeship that he has been appointed to, then I believe that it is clearly wrong. The Constitution provides that appointed judges “shall hold their Offices during good Behaviour” and that they “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” I’m very open to an expansive understanding of “Misdemeanors” that would make it the obverse of “good Behaviour,” and I’m also open to the view that a judge’s exercise of his judicial duties can be so irresponsible as to fall short of the “good Behaviour” standard and expose him to impeachment. But, as I see it, impeachment is the sole constitutional means by which Congress can undertake to terminate the service of an appointed judge.

If I’m right on this, then it would be especially unseemly for Newt Gingrich to invoke the support of Stuart v. Laird for his proposal. To his credit, Gingrich is challenging head-on the myth of judicial supremacy—the myth, that is, that the Constitution must be deemed to mean whatever the Supreme Court has said it means. But in combating this myth, Gingrich shouldn’t be relying on a Supreme Court ruling that (if it means what he maintains it means) was wrongly decided.


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