What's Old is New Again
49 Pages Posted: 1 Feb 2007
In this essay, Michael Gerhardt examines a number of recent proposals and arguments to augment federal power to retaliate against judicial decisions federal authorities deem wrongly decided. He suggests these schemes all lack support from conventional sources of constitutional meaning and violate the independence guaranteed to the federal judiciary individually and collectively by the Constitution. This is especially true of recent arguments made by some congressional leaders and conservative scholars to support impeaching and removing federal judges for bad judicial decisions. Gerhardt demonstrates that these arguments are far from new and are merely the expressions of minority viewpoints which were rejected at the time of the Founding and repeatedly since as violating the substantive conception of judicial independence that the Constitution protects.
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