What's Old is New Again

49 Pages Posted: 1 Feb 2007

See all articles by Michael J. Gerhardt

Michael J. Gerhardt

University of North Carolina School of Law


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.

Suggested Citation

Gerhardt, Michael J., What's Old is New Again. Boston University Law Review, Vol. 86, 2006; University of North Carolina Legal Studies Research Paper No. 960411. Available at SSRN: https://ssrn.com/abstract=960411

Michael J. Gerhardt (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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