Comments for Point of Order

Comment on More on Gingrich and Judges by Shag from Brookline

Shag from Brookline — Mon, 02 Jan 2012 15:00:13 +0000

Michael, your post made no reference to judicial supremacy but Gingrich has challenged such, thus my reference. I think there should be more discussion about the question (not necessarily at your Blog). If Morgan’s book is available at my library, I’ll check it out, particularly with respect to original understanding, as this relates to my interest in originalism v. non-originalism. I can imagine a runaway Constitutional Convention addressing judicial supremacy. Constitutional Commentary’s Symposium “The United States Constitution (rev. ed.) How would you rewrite the United States Constitution?” Vol. 27, No. 3, Winter 2011, includes several submissions critical of judicial review, which is of course connected to judicial supremacy (although neither is specifically provided for in the Constitution).

Comment on More on Gingrich and Judges by mstern

mstern — Mon, 02 Jan 2012 14:23:39 +0000

Shag- nothing in my post should be taken as an endorsement of “judicial supremacy.” An interesting source on this issue is Donald Morgan’s book, Congress and the Constitution, in which he criticizes the “judicial monopoly theory” and explain how that theory gradually came to supplant the original understanding that each branch was obligated to interpret the Constitution for itself.

Comment on More on Gingrich and Judges by Shag from Brookline

Shag from Brookline — Mon, 02 Jan 2012 13:51:40 +0000

Gingrich’s positions regarding the judiciary are political rhetoric/bombast. However, there are legitimate constitutional issues on whether Article III or other parts of the Constitution provide for judicial supremacy over the Executive and Legislative branches at the federal level. Neither judicial review nor such judicial supremacy are specifically provided for in the Constitution. Barry Friedman and Erin Delaney have an interesting article “Becoming Supreme: The Federal Foundation of Judicial Supremacy” in 111 Columbia L.R. No. 6 October 2011. A careful read of the article fails to identify a specific provision in the Constitution for judicial supremacy.

Specifically with respect to Congress subpoenaing SCOTUS Justices, consider a controversial 5-4 decision. Would all of the Justices be subpoenaed or only those with written opinions? Would written communications be included? A circus atmosphere would surely be created.

But horizontal judicial supremacy is another matter. See Howard Wasserman’s 12/20/11 post “Losing ideas amid the noise” at PrawfsBlawg and the link there provided to an Eric Posner Slate article.

Comment on Using Inherent Contempt Against Federal Judges by mstern

mstern — Fri, 30 Dec 2011 21:47:00 +0000

BD- thanks!

Comment on Using Inherent Contempt Against Federal Judges by BD

BD — Fri, 30 Dec 2011 19:59:25 +0000

Near the end, “August 2008″ should be “August 1998.”

Comment on Using Inherent Contempt Against Federal Judges by Shag from Brookline

Shag from Brookline — Tue, 20 Dec 2011 13:38:57 +0000

I have suggested elsewhere (Balkinization) perhaps Christie with Newt as his running mate, real GOP heavyweights, that might have a short run as the political law of gravity takes over. The sad thing is that both the Daily Show and Stephen Colbert while respecting the holiday season for their staffs – and themselves – are reducing the real “faux-i-ness” of the GOP circus.

Comment on Using Inherent Contempt Against Federal Judges by mstern

mstern — Tue, 20 Dec 2011 13:09:48 +0000

Or maybe I am leaning from Newt to Christie, as dictated by the laws of gravity.

Comment on Using Inherent Contempt Against Federal Judges by Shag from Brookline

Shag from Brookline — Tue, 20 Dec 2011 12:33:19 +0000

Stern’s use of “zany” might suggest he is leaning left from Newt to Mitt.

Comment on Judicial Accountability Hearings? by Shag from Brookline

Shag from Brookline — Fri, 16 Dec 2011 11:18:01 +0000

Speaking of far-fetched: “But that’s only because Gingrich isn’t president yet.”

Comment on The Use and Abuse of Legislative Privilege- Canadian Edition by mstern

mstern — Thu, 24 Nov 2011 02:30:07 +0000

Mark- apparently “tabling a document” in Canada means filing the document or laying it before the House. I am not aware of the term being used that way in American legislative practice.

I don’t believe that either the House or the Senate has any specific rule about referring to private individuals in debate. Compare Senate Rule XIX(2) (“No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.”). Arguably, a defamatory remark about a non-member could be charged as an ethics violation based on a general “conduct unbecoming” theory. In the Hutchinson v. Proxmire case, Senator Proxmire’s counsel argued that a defamatory remark could be redressed by the ethics committee, but he could not cite any specific examples of this being done, and the Court seemed to be unimpressed by his contention.