Day: April 10, 2017

The Stuart King James had judges riding into the countryside once a year to hear cases, saving many of his subjects the arduous journey to London.  The custom carried “across the pond” and, from the earliest days of the American colonies, judges could be found “riding the circuit”.

Article III of the United States Constitution establishes the judiciary as a coequal branch of the federal government, “vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”. That’s about it.

Congress passed the Federal Judiciary Act in 1789, creating a six justice Supreme Court, and signed into law by President George Washington on September 24.  Principally written by Senator Oliver Ellsworth of Connecticut, the act established the office of Attorney General, and largely laid out the Federal court system, as it exists today.

United States Circuit courts were established in each federal judicial district, exercising jurisdiction over both original (first instance) matters and appeals, until the creation of the Federal Court of Appeals, in 1912.

Supreme Court justices were not exempt from Circuit court duty, each justice “riding the circuit” to hear cases in his own district, in addition to his caseload, back at the capital.

Smaller districts may occupy a single federal courthouse, while larger districts stretch across thousands of miles.  This duty became increasingly onerous, until finally abolished by the Judiciary Act of 1891. Yet, the vestiges of this system remain. Today, each justice hears certain provisional appeals from specific circuits, which he or she may decide unilaterally, or refer “en banc” to the entire Court.

Increasing caseloads led Congress to increase the number of judicial districts to seven in 1807, and nine in 1837, finally raising that to ten during the Civil War.  With each new district, came another justice.

In one of the political skirmishes leading to President Andrew Johnson’s impeachment in 1868, Congress passed the Judicial Circuits Act in 1866, shrinking the number of justices to seven, thus preventing Johnson from appointing any new justices.

Congress raised the number to nine circuits with nine justices on April 10, 1869.  Today there are eleven federal judicial districts, while the number of justices remain at nine.

In 1937, President Franklin Delano Roosevelt sought to increase the number of justices to 15. Then as now, the court was sharply divided along ideological lines, consisting of a four member conservative majority called the “four horsemen”, three liberals dubbed the “three musketeers” and two “swing votes”.

The conservative bloc became a roadblock to President Roosevelt’s New Deal programs, preferring the federal government take a hands off approach to the economy.

Buoyed by his landslide reelection in 1936, Roosevelt proposed to provide retirement at full pay for all justices over 70.  Any justice refusing retirement would be provided with an “assistant” with full voting rights, providing Roosevelt with an overwhelming liberal majority.

Not even vice president John Nance Garner would go along with Roosevelt’s aggressive and illegal “court packing scheme”, nor would a democrat-controlled congress. Yet Roosevelt’s effort had the desired result, as former swing vote Owen Roberts became a reliable vote for the liberal minority. By the time of his death 1945, Roosevelt had appointed every justice on the court, except Roberts himself.

There have been fewer justices in Supreme Court history than you might think.  The recent passing of Antonin Scalia made way for only number 113.

A proponent of “Judicial Originalism”, justice Scalia and his conservative allies on the court seek to decide on the constitutionality of the laws before them, based on what the framers of the constitution intended when they actually wrote the thing. In contrast, the liberal majority believes in a “living constitution”, a form of jurisprudence whose supporters believe the Constitution is a document which adapts to the times.  Detractors believe that amounts to law-making from the bench, a job more properly left the legislature.

With the ideological makeup of the Supreme Court hanging in the balance, President Obama and his allies pulled out all the stops to get his nominee confirmed and seated before the end of his presidency. The Republican controlled Senate invoked the “Biden Rule”, as described in the former Vice President’s 1992 speech on the Senate floor:  “It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”

Barack Obama himself tried to block the confirmation of Samuel Alito in 2006, saying “There are some who believe that the president, having won the election, should have complete authority to appoint his nominee, that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed. I disagree with this view”. The filibuster was joined by Senators Kennedy, Leahy, Durbin, Salazar, and Baucus.

In 2007, now-Senate minority leader Chuck Schumer said “We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances”. That was 19 months before the next presidential inauguration.

The resulting conflict is great fodder for the bicker fest that passes for our national politics, from the legacy media and the talking heads of the punditocracy, to the endless and meaningless cage matches over the rhetorical anthills of Facebook.

Senator Schumer once said, “We have three branches of government. We have a house, we have a senate, we have a president.” He got that wrong, but he was part right.  We have three co-equal branches in our government, each having specific responsibilities as laid out in the Constitution.

The “advice and consent” clause contained in Article II grants the President authority to appoint judges to the Supreme Court, “by and with the Advice and Consent of the Senate.”  The Senate, for its part, will do what the Senate will do.

Later today, Justice David Kennedy will administer the oath of office to his former law clerk, judge Neil Gorsuch.  The 113th justice of the United States Supreme Court, and the first in history to serve alongside the justice for whom he once clerked.