Bench Memos

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Gingrich’s Awful Proposal to Abolish Judgeships—Part 4


Ed and I are getting into the weeds a bit here on Stuart v. Laird, I know.  I think that it does (tacitly) mean that the Congress may abolish an Article III court and thus terminate the service of sitting Article III judges, and that there’s a good case that it was rightly decided.  If Congress can abolish a court, and if judgeships are inextricably tied to those courts such that the judges’ commissions are for service thereon, then the abolition of a court terminates the service.  Neither of the following seems right to me: 1) Congress cannot abolish an Article III court; or 2) Congress can abolish such a court, but must then either find alternative service for the judges whose court was abolished (and whose commissions were to the abolished court), or pay them to be idlers for the rest of their lives.

Be all this as it may, the important thing is what Ed and I agree on.  If the Congress’s treatment of the 1801 circuit judges was constitutionally wrong, then Gingrich is constitutionally wrong.  But if what Congress did in 1802 was constitutionally legitimate, Gingrich is still wrong, because what was done then is not a precedent for what he is considering doing now.


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