Chief Justice Roberts’s order in the ballroom case is a useful illustration of how standardless the Court’s approach to “administrative” stays appears to be.
I think that it is patently obvious that Chief Justice Roberts wants to moot the ballroom case by delaying any judgement on the merits until the ballroom is effectively built. I doubt he cares much, if at all, about the ballroom itself and he sees no upside in angering Trump over this case. We can all decry this abdication of responsibility, but Roberts is being pragmatic, as he sees it.
Epstein Files, perhaps? Unless you can give me an explanation of how a pedophile who bragged on Howard Stern's radio show about his privilege to slink into the dressing rooms and drool over the young girls as they were changing their clothes, hasn't any real enemies with enough teeth to do actual damage to trump. I really can't see it any other way, honestly.
I have to constantly remind myself that every single country has the exact type of government that the people deserve to have. As disgusting as this is, it's truth.
The Supreme Court needs the support of the government to be effective in various respects, and Trump is a major part of the government.
For instance, SCOTUS wants money and other things.
Trump has also regularly used harsh rhetoric against the courts. The rhetoric delegitimizes the courts. People read how Trump thinks the courts, including Roberts, is effectively lawless. This has various negative effects, including harassment and even violence.
We certainly need to protect judges from unlawful conduct by people. But Congress also needs to protect the people from unlawful conduct by judges.
Chief Justice Roberts, himself, wrote an opinion (which Justices Scalia and Kennedy joined) to dissent and extremely strongly condemn judicial misconduct in Alleyne v. United States, 570 U.S. 99, 126-127 (2013). They emphasized that Alexander Hamilton emphasized in The Federalist No. 83 that the People wrote and ratified our Constitution to limit judicial power “as a protection against judicial despotism.”
The justices in 2013 also quoted the venerable SCOTUS Justice Joseph Story in 1833. In his highly respected and influential Commentaries on the Constitution of the United States, Justice Story emphasized that the Framers were (so we should be) deeply concerned with “the prejudices of judges” who might be influenced by “the mere wishes and opinions of the government” or “the passions of the multitude.” So Justice Story emphasized that the Constitution was written to protect us "against the prejudices of judges.”
The 2013 justices also quoted the venerable Blackstone’s Commentaries on the Laws of England in 1769 (which were studied and often followed by the Founders and Framers). The justices emphasized Blackstone’s emphasis on “the danger inherent in allowing” judges to take action against people based on the mere “will and pleasure” of a public official. The justices emphasized that even Blackstone—and even English “common law” (which was created by judges)—emphasized the need to “guard against” the “violence and partiality of judges.” They emphasized that good and wise judges, using the common law, “wisely placed” the “jury” (as a “strong” bulwark or “barrier”) “between the liberties of the people” and “the prerogative of the crown” (which vicious judges too often wielded as their own).
Funny how this never came up before. No one on Earth looked at a ruling three years ago and said "Roberts is being practical because he needs Biden on his good side."
Also, you're trying to argue that ruling for Trump due to potential threats safeguards legitimacy more than ruling for him later after threats. That is obviously silly reasoning.
Trump is sui generis. The Supreme Court didn't have to worry about angering a normal President because they were confident that normal Presidents act within the law and common norms of behavior. Trump has destroyed all pretension to normal behavior. As others have noted, he reverts to calls to violence and public shaming when he doesn't get his way.
That said, I do think that Justices since Marshall have been wary of making rulings that create unneeded friction with the other branches. That is one of the features of Madison v. Marbury that is so striking; it established precedent without actually taking on Congress. It is one thing to rule against Trump in a high-visibility case like Barbara or Cook, where the stakes are high. I don't think that Roberts or the rest of the Court really cares that much about whether Trump builds a ballroom or not. Especially since something now has to be built where the old East Wing used to be. Since the horse has already left the barn, closing the doors provides only cathartic relief, not real value.
Highlighting that "the justices have never publicly identified any criteria for an 'administrative' stay" but "irreparable harm has to be at least part of the equation" highlights another reason Congress must take action to remedy the lawless misconduct of SCOTUS justices. As they have many times, the current gaggle of SCOTUS justices has again established that legislative action is both necessary and proper.
These SCOTUS justices so egregiously ignore or misrepresent controlling or highly relevant text of the Constitution and so egregiously violate the letter and spirit of our Constitution that people from all across the political spectrum (and even within the judiciary) see SCOTUS justices as lawless violators of our Constitution. The time is ripe for Congress to fulfill its duties under the Constitution regarding the government of SCOTUS.
As the Preamble emphasized from the outset, "We the People" did "ordain and establish [our] Constitution for the United States of America" very significantly to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity." In Article VI, the People emphasized that all members of Congress were under a constant duty “to support this Constitution” in all official conduct, including by enacting “Laws of the United States [ ] made in Pursuance” of our Constitution. In Article I, the People vested in Congress “All legislative Powers herein granted,” including the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution" absolutely "all [the] Powers vested by this Constitution in [Congress or in] the Government of the United States, or in any Department or Officer thereof."
It's time that Congress required SCOTUS justices to provide answers about what they have been doing to prepare to enact legislation that is necessary and proper to carry into execution the powers of SCOTUS and SCOTUS justices.
SCOTUS justices always were expected to be governed by strict rules. Public servants governed by rules is essential to the rule of law. As Alexander Hamilton in Federalist No. 78 (to explain why Americans should support ratification of the Constitution) emphasized, "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents."
Judges are not allowed (by our Constitution) to "substitute their own pleasure to the constitutional intentions of the legislature" (or the will of the People expressed in our Constitution). Judicial independence means that "judges [actually] do their duty as faithful guardians of the Constitution." The "necessary independence" of judges means their "inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice."
"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which . . . have a tendency [ ] to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."
When are people going to stop ignoring the patently obvious and just state that this SC is packed full of crooked hacks. They will say or do anything, and they will rule in whatever way they have to to keep Trump in power.
A lawyer or law professor who helps us understand what SCOTUS justices are doing contrary to our Constitution is far from "ignoring the patently obvious." Professor Vladeck, for example, consistently helps us see what is not patently obvious.
Lawyers who practice before SCOTUS and law professors who hope to enlighten SCOTUS justices with their writing also have very good cause not to " just state that this SC is packed full of crooked hacks." Judges are remarkably and notoriously hostile to such criticism. They're also remarkably and notoriously petty, spiteful and vindictive toward such critics. Judges are some of the most flagrant violators of the First Amendment that you're ever likely to see.
So basically, every president from now on can tear down the white house and build whatever they want. Maybe even make some money off this and do a collab with the property brothers.
If the ballroom gets built, then when Dems get back in power in 2028, all trump desecrations will be torn down, removed. There will be nothing with his name on it or that he wanted built. That is what "We The People" want and deserve. Also, Dems need to increase the number of Supreme Court Justices to 21.
65% of what is complete? The ballroom, which is the "project" at issue? The entire project, including the unlawful destruction of the East Wing? The photo certainly doesn't suggest a building - the ballroom - that is close by 2/3 done.
The SCOTUS is supposed to be held to high standards. This has changed considerably over the years. The SC judges should NOT have lifetime appointments. They can do what they want and feel safe in their "lifetime" appointments. When the SC was developed, people led much shorter lives. The appointment to the SC should not be done by the president, or any one person. They need term limits, not lifetime appointments.
Federal judges don't have "lifetime" appointments, and the conduct of judges who knowingly violate our Constitution and their oaths of office helps highlight why "for life" is not the term of employment of any federal employee.
For good reason (including to establish a substantive limitation on judicial terms of office), the People in Article III emphasized that all "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour." Our Constitution expressly emphasizes that federal judges can be removed for behavior that is not good.
As Alexander Hamilton emphasized in Federalist No. 79, only “judges” who “behave properly, will be secured in their places for life.” “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton).
Chief Justice Marshall (writing for SCOTUS regarding the meaning of our Constitution) in Marbury v. Madison in 1803 emphasized the meaning of the language from Article VI of our Constitution regarding "the supreme Law of the Land" and the oaths (duty) of public servants "to support [our] Constitution."
"The government of the United States has been emphatically termed a government of laws, and not of men."
Clearly, the people who wrote and ratified our "constitution contemplated [our Constitution], as a rule for the government of courts, as well as of the legislature. [That is precisely why the Article VI and federal law (5 U.SC. 3331)] command all federal] judges to take an oath to support [our Constitution]. This oath certainly applies, in an especial manner, to [public servants’] conduct in their official character. . . . [The reason each] judge swear[s] to discharge his duties agreeably to the constitution of the United States [is] that constitution forms [the supreme] rule for his government."
A judge who knowingly violates his oath of office clearly cannot claim good behavior, so such judge can be removed consistent with our Constitution. Judges routinely hold people accountable for violating their oaths in court (to testify truthfully). We should start holding judges accountable for violating their oaths of office (in 5 U.S.C. 3331 and 28 U.S.C. 453).
You use the colloquial "lifetime" appointment phrasing. This is understandable. It is commonly used, including in civics discussions.
The Constitution speaks of good behavior. I will use the American spelling.
Ethics requirements are acceptable, for instance, since Congress has the authority to enforce good behavior if only by citation of the Necessary and Proper Clause.
But these checks, and they should be stronger, will only go so far. Term limits are a reasonable discussion to have. OTOH, it shouldn't be the ONLY discussion, especially since, unlike regulating good behavior, term limits are likely something only allowable by constitutional amendment.
Some argue otherwise. But I doubt it. And since term limits will be a heavy lift, a moderate position that they are necessary but only by constitutional amendment is likely to be the median position.
There's no good reason to encourage misrepresentations that federal judges have "lifetime" appointments. First, they're just plain false. Second, they inculcate in people a sense of helplessness with respect to the misconduct of certain public servants. Third, they lead judges to misrepresent that judges are not "accountable" to anyone outside the judiciary.
Even worse, they lead SCOTUS justices to misrepresent that they are not accountable to anyone at all. Recall Alito's knowing misrepresentation that Congress “no authority” to regulate the conduct of SCOTUS justices, as well as Alito's provocative flag challenging us to "Appeal to Heaven."
One of the most alarming (and deceitful) statements ever written by a current SCOTUS justice must include the following by Chief Justice Roberts in a concurring opinion in S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020): the “federal judiciary” simply “is not accountable to the people.” That falsehood stands in striking contrast to another glaring falsehood in Trump v. Anderson in 2024: such "federal officers" somehow '‘owe their existence and functions to the united voice of the whole, not of a portion, of the people.'
Chief Justice Roberts once again treats Americans to the "judicial despotism" that he previously acknowledged was one of the primary concerns of the people who wrote and ratified our Constitution.
As recently as 2013, three justices felt compelled to emphasize (with strong language for SCOTUS justices) the Founders’ and Framers’ profound fear of "judicial despotism." Chief Justice Roberts wrote an opinion that Justices Scalia and Kennedy joined to dissent (to extremely strongly condemn the judicial misconduct at issue) in Alleyne v. United States, 570 U.S. 99, 126-127 (2013). The justices emphasized that Alexander Hamilton emphasized in The Federalist No. 83 that the People wrote and ratified our Constitution to limit judicial power “as a protection against judicial despotism.”
Generally, the party seeking a stay has the burden of proof and it’s a tough burden to carry. Administrative stays reverse the burden and are granted with no reasoning whatsoever which is not surprising since no reasonable argument could support them. (If it could, why not give it and quiet the complainers?) Administrative stays have no constitutional basis or anything to support them in judicial history and are completely lawless exercises of political power totally inappropriate for the judicial branch. They are abuses of judicial office and fully justify impeachment and removal of judges who use them regardless of their party.
Your point that Roberts is using the ballroom dispute as a procedural lever rather than a substantive judgment highlights the Court’s comfort with vague “administrative” stays, especially when the political cost appears limited. This pragmatic stance mirrors lower courts’ habit of deferring without publishing clear criteria, which erodes predictability.https://marioncountycourts.org show how similar ambiguities can cloud litigants’ assessment of procedural risk, and the missing harm threshold only deepens uncertainty. Ultimately, the real damage may be the loss of transparent judicial standards.
It seems that Roberts wants to wait until the trump tribe asserts that it has reached the point of no return and then the court can feel just fine about saying it can go ahead. Bet Roberts and Alito are just chomping at the bit to be attendees at the grand opening of the next gold monstrosity that trump is imposing on this country. Why can 1 or 9 decide the fate of things that the majority of citizens, voters and taxpayers object to. It is our country as well as theirs.
Why isn’t the illegal use of taxpayer funds enough for irreparable harm? Taxpayers can never be made whole. There are no money damages but from our own pockets? Little care seems ever to attend to Trump’s majestic, self-indulgent spending of taxpayer funds, which can only be stopped but never (or almost never returned, except in cases of outright theft and then perhaps only theoretically so, given this President’s Court-found immunity) recovered, and repairing the harm requires more taxpayer funds. A little more respect for this abuse of power and the total loss to taxpayers, would be nice.
I do think, Professor, that the Chief Justice may have decided to frustrate your lofty ambition “to make the Court more accessible.” He seems to just raise the Court’s reasoning to loftier stratospheric levels where only the very powerful can have access!
The analysis of Administrative stays is as usual impeccable but it misses one important point Steve mentions the USPS “final “? rule on Vote by Mail and the Postal Service self imposed stay But this ignores the fact that USPS rules are arguably subject to review by a Circuit Court under the Administrative Procedures Act. Even if the Administrative Stays are dissolved it means only that Trump has the power to “request “ USPS to do his bidding. The Ruke is still arbitrary capricious and contrary to Law
Professor Vladeck complains (rightly) about C.J. Roberts administrative stay. But what was also problematical was the D.C. Circuit’s April 17 administrative stay. That stay endured for 4 months while members of the court wrote long majority and dissenting opinions. During those critical months Trump’s construction crews were enabled to work (apparently day and night) to get a big start on building enough of the above-ground part of ball room and claim it is now too late to stop as it would leave “a 70-foot superstructure to degrade and possibly collapse in high winds”.
The Solicitor General himself credits the D. C. Circuit’s 4-month stay as a cause for the predicament: He remarks “ Further, the court of appeals’ stays have allowed construction to proceed ‘beyond the point of return,’ making the costs of stopping now—with a not-yet-stabilized superstructure vulnerable to weather—very much not a problem of the government’s sole creation.“
Roberts’ decision to allow continuation of the building of a new ballroom – and an underground bunker/military facility ? – is another example (not that we need any more) of his willful blindness to blatantly obvious and avoidable harmful consequences of his decisions. As well as illegal,according to commentators more versed in the law than I. If possession, as the saying goes is nine-tenths of the law, then substantial construction (on the ground, above and below the ground in this case) is 95%+ of the case against illegal building. I think in future we should only call him by his name, because putting “Justice”, let alone “Chief Justice” next to Roberts is a more obvious and striking example of an oxymoron than the classic one of “Jumbo Shrimp”.
I wonder if Trump has access to the plans for Hitler’s underground bunker of the architect Albert Speer who died in London in 1981? And who will play the role of Eva Braun if the bunker becomes the last stand of this regime? There are several candidates for this role.
I think that it is patently obvious that Chief Justice Roberts wants to moot the ballroom case by delaying any judgement on the merits until the ballroom is effectively built. I doubt he cares much, if at all, about the ballroom itself and he sees no upside in angering Trump over this case. We can all decry this abdication of responsibility, but Roberts is being pragmatic, as he sees it.
What does Roberts lose by angering Trump?
Have you ever noticed how Trump tries to incite violence and threats of violence against those who oppose him?
Roberts doesn't care about that.
Epstein Files, perhaps? Unless you can give me an explanation of how a pedophile who bragged on Howard Stern's radio show about his privilege to slink into the dressing rooms and drool over the young girls as they were changing their clothes, hasn't any real enemies with enough teeth to do actual damage to trump. I really can't see it any other way, honestly.
I have to constantly remind myself that every single country has the exact type of government that the people deserve to have. As disgusting as this is, it's truth.
The Supreme Court needs the support of the government to be effective in various respects, and Trump is a major part of the government.
For instance, SCOTUS wants money and other things.
Trump has also regularly used harsh rhetoric against the courts. The rhetoric delegitimizes the courts. People read how Trump thinks the courts, including Roberts, is effectively lawless. This has various negative effects, including harassment and even violence.
We certainly need to protect judges from unlawful conduct by people. But Congress also needs to protect the people from unlawful conduct by judges.
Chief Justice Roberts, himself, wrote an opinion (which Justices Scalia and Kennedy joined) to dissent and extremely strongly condemn judicial misconduct in Alleyne v. United States, 570 U.S. 99, 126-127 (2013). They emphasized that Alexander Hamilton emphasized in The Federalist No. 83 that the People wrote and ratified our Constitution to limit judicial power “as a protection against judicial despotism.”
The justices in 2013 also quoted the venerable SCOTUS Justice Joseph Story in 1833. In his highly respected and influential Commentaries on the Constitution of the United States, Justice Story emphasized that the Framers were (so we should be) deeply concerned with “the prejudices of judges” who might be influenced by “the mere wishes and opinions of the government” or “the passions of the multitude.” So Justice Story emphasized that the Constitution was written to protect us "against the prejudices of judges.”
The 2013 justices also quoted the venerable Blackstone’s Commentaries on the Laws of England in 1769 (which were studied and often followed by the Founders and Framers). The justices emphasized Blackstone’s emphasis on “the danger inherent in allowing” judges to take action against people based on the mere “will and pleasure” of a public official. The justices emphasized that even Blackstone—and even English “common law” (which was created by judges)—emphasized the need to “guard against” the “violence and partiality of judges.” They emphasized that good and wise judges, using the common law, “wisely placed” the “jury” (as a “strong” bulwark or “barrier”) “between the liberties of the people” and “the prerogative of the crown” (which vicious judges too often wielded as their own).
Funny how this never came up before. No one on Earth looked at a ruling three years ago and said "Roberts is being practical because he needs Biden on his good side."
Also, you're trying to argue that ruling for Trump due to potential threats safeguards legitimacy more than ruling for him later after threats. That is obviously silly reasoning.
Trump is sui generis. The Supreme Court didn't have to worry about angering a normal President because they were confident that normal Presidents act within the law and common norms of behavior. Trump has destroyed all pretension to normal behavior. As others have noted, he reverts to calls to violence and public shaming when he doesn't get his way.
That said, I do think that Justices since Marshall have been wary of making rulings that create unneeded friction with the other branches. That is one of the features of Madison v. Marbury that is so striking; it established precedent without actually taking on Congress. It is one thing to rule against Trump in a high-visibility case like Barbara or Cook, where the stakes are high. I don't think that Roberts or the rest of the Court really cares that much about whether Trump builds a ballroom or not. Especially since something now has to be built where the old East Wing used to be. Since the horse has already left the barn, closing the doors provides only cathartic relief, not real value.
Highlighting that "the justices have never publicly identified any criteria for an 'administrative' stay" but "irreparable harm has to be at least part of the equation" highlights another reason Congress must take action to remedy the lawless misconduct of SCOTUS justices. As they have many times, the current gaggle of SCOTUS justices has again established that legislative action is both necessary and proper.
These SCOTUS justices so egregiously ignore or misrepresent controlling or highly relevant text of the Constitution and so egregiously violate the letter and spirit of our Constitution that people from all across the political spectrum (and even within the judiciary) see SCOTUS justices as lawless violators of our Constitution. The time is ripe for Congress to fulfill its duties under the Constitution regarding the government of SCOTUS.
As the Preamble emphasized from the outset, "We the People" did "ordain and establish [our] Constitution for the United States of America" very significantly to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity." In Article VI, the People emphasized that all members of Congress were under a constant duty “to support this Constitution” in all official conduct, including by enacting “Laws of the United States [ ] made in Pursuance” of our Constitution. In Article I, the People vested in Congress “All legislative Powers herein granted,” including the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution" absolutely "all [the] Powers vested by this Constitution in [Congress or in] the Government of the United States, or in any Department or Officer thereof."
It's time that Congress required SCOTUS justices to provide answers about what they have been doing to prepare to enact legislation that is necessary and proper to carry into execution the powers of SCOTUS and SCOTUS justices.
SCOTUS justices always were expected to be governed by strict rules. Public servants governed by rules is essential to the rule of law. As Alexander Hamilton in Federalist No. 78 (to explain why Americans should support ratification of the Constitution) emphasized, "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents."
Judges are not allowed (by our Constitution) to "substitute their own pleasure to the constitutional intentions of the legislature" (or the will of the People expressed in our Constitution). Judicial independence means that "judges [actually] do their duty as faithful guardians of the Constitution." The "necessary independence" of judges means their "inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice."
"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which . . . have a tendency [ ] to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."
When are people going to stop ignoring the patently obvious and just state that this SC is packed full of crooked hacks. They will say or do anything, and they will rule in whatever way they have to to keep Trump in power.
A lawyer or law professor who helps us understand what SCOTUS justices are doing contrary to our Constitution is far from "ignoring the patently obvious." Professor Vladeck, for example, consistently helps us see what is not patently obvious.
Lawyers who practice before SCOTUS and law professors who hope to enlighten SCOTUS justices with their writing also have very good cause not to " just state that this SC is packed full of crooked hacks." Judges are remarkably and notoriously hostile to such criticism. They're also remarkably and notoriously petty, spiteful and vindictive toward such critics. Judges are some of the most flagrant violators of the First Amendment that you're ever likely to see.
So basically, every president from now on can tear down the white house and build whatever they want. Maybe even make some money off this and do a collab with the property brothers.
If the ballroom gets built, then when Dems get back in power in 2028, all trump desecrations will be torn down, removed. There will be nothing with his name on it or that he wanted built. That is what "We The People" want and deserve. Also, Dems need to increase the number of Supreme Court Justices to 21.
65% of what is complete? The ballroom, which is the "project" at issue? The entire project, including the unlawful destruction of the East Wing? The photo certainly doesn't suggest a building - the ballroom - that is close by 2/3 done.
The SCOTUS is supposed to be held to high standards. This has changed considerably over the years. The SC judges should NOT have lifetime appointments. They can do what they want and feel safe in their "lifetime" appointments. When the SC was developed, people led much shorter lives. The appointment to the SC should not be done by the president, or any one person. They need term limits, not lifetime appointments.
Federal judges don't have "lifetime" appointments, and the conduct of judges who knowingly violate our Constitution and their oaths of office helps highlight why "for life" is not the term of employment of any federal employee.
For good reason (including to establish a substantive limitation on judicial terms of office), the People in Article III emphasized that all "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour." Our Constitution expressly emphasizes that federal judges can be removed for behavior that is not good.
As Alexander Hamilton emphasized in Federalist No. 79, only “judges” who “behave properly, will be secured in their places for life.” “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton).
Chief Justice Marshall (writing for SCOTUS regarding the meaning of our Constitution) in Marbury v. Madison in 1803 emphasized the meaning of the language from Article VI of our Constitution regarding "the supreme Law of the Land" and the oaths (duty) of public servants "to support [our] Constitution."
"The government of the United States has been emphatically termed a government of laws, and not of men."
Clearly, the people who wrote and ratified our "constitution contemplated [our Constitution], as a rule for the government of courts, as well as of the legislature. [That is precisely why the Article VI and federal law (5 U.SC. 3331)] command all federal] judges to take an oath to support [our Constitution]. This oath certainly applies, in an especial manner, to [public servants’] conduct in their official character. . . . [The reason each] judge swear[s] to discharge his duties agreeably to the constitution of the United States [is] that constitution forms [the supreme] rule for his government."
A judge who knowingly violates his oath of office clearly cannot claim good behavior, so such judge can be removed consistent with our Constitution. Judges routinely hold people accountable for violating their oaths in court (to testify truthfully). We should start holding judges accountable for violating their oaths of office (in 5 U.S.C. 3331 and 28 U.S.C. 453).
You use the colloquial "lifetime" appointment phrasing. This is understandable. It is commonly used, including in civics discussions.
The Constitution speaks of good behavior. I will use the American spelling.
Ethics requirements are acceptable, for instance, since Congress has the authority to enforce good behavior if only by citation of the Necessary and Proper Clause.
But these checks, and they should be stronger, will only go so far. Term limits are a reasonable discussion to have. OTOH, it shouldn't be the ONLY discussion, especially since, unlike regulating good behavior, term limits are likely something only allowable by constitutional amendment.
Some argue otherwise. But I doubt it. And since term limits will be a heavy lift, a moderate position that they are necessary but only by constitutional amendment is likely to be the median position.
There's no good reason to encourage misrepresentations that federal judges have "lifetime" appointments. First, they're just plain false. Second, they inculcate in people a sense of helplessness with respect to the misconduct of certain public servants. Third, they lead judges to misrepresent that judges are not "accountable" to anyone outside the judiciary.
Even worse, they lead SCOTUS justices to misrepresent that they are not accountable to anyone at all. Recall Alito's knowing misrepresentation that Congress “no authority” to regulate the conduct of SCOTUS justices, as well as Alito's provocative flag challenging us to "Appeal to Heaven."
One of the most alarming (and deceitful) statements ever written by a current SCOTUS justice must include the following by Chief Justice Roberts in a concurring opinion in S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020): the “federal judiciary” simply “is not accountable to the people.” That falsehood stands in striking contrast to another glaring falsehood in Trump v. Anderson in 2024: such "federal officers" somehow '‘owe their existence and functions to the united voice of the whole, not of a portion, of the people.'
Chief Justice Roberts once again treats Americans to the "judicial despotism" that he previously acknowledged was one of the primary concerns of the people who wrote and ratified our Constitution.
As recently as 2013, three justices felt compelled to emphasize (with strong language for SCOTUS justices) the Founders’ and Framers’ profound fear of "judicial despotism." Chief Justice Roberts wrote an opinion that Justices Scalia and Kennedy joined to dissent (to extremely strongly condemn the judicial misconduct at issue) in Alleyne v. United States, 570 U.S. 99, 126-127 (2013). The justices emphasized that Alexander Hamilton emphasized in The Federalist No. 83 that the People wrote and ratified our Constitution to limit judicial power “as a protection against judicial despotism.”
Generally, the party seeking a stay has the burden of proof and it’s a tough burden to carry. Administrative stays reverse the burden and are granted with no reasoning whatsoever which is not surprising since no reasonable argument could support them. (If it could, why not give it and quiet the complainers?) Administrative stays have no constitutional basis or anything to support them in judicial history and are completely lawless exercises of political power totally inappropriate for the judicial branch. They are abuses of judicial office and fully justify impeachment and removal of judges who use them regardless of their party.
Your point that Roberts is using the ballroom dispute as a procedural lever rather than a substantive judgment highlights the Court’s comfort with vague “administrative” stays, especially when the political cost appears limited. This pragmatic stance mirrors lower courts’ habit of deferring without publishing clear criteria, which erodes predictability.https://marioncountycourts.org show how similar ambiguities can cloud litigants’ assessment of procedural risk, and the missing harm threshold only deepens uncertainty. Ultimately, the real damage may be the loss of transparent judicial standards.
It seems that Roberts wants to wait until the trump tribe asserts that it has reached the point of no return and then the court can feel just fine about saying it can go ahead. Bet Roberts and Alito are just chomping at the bit to be attendees at the grand opening of the next gold monstrosity that trump is imposing on this country. Why can 1 or 9 decide the fate of things that the majority of citizens, voters and taxpayers object to. It is our country as well as theirs.
Why isn’t the illegal use of taxpayer funds enough for irreparable harm? Taxpayers can never be made whole. There are no money damages but from our own pockets? Little care seems ever to attend to Trump’s majestic, self-indulgent spending of taxpayer funds, which can only be stopped but never (or almost never returned, except in cases of outright theft and then perhaps only theoretically so, given this President’s Court-found immunity) recovered, and repairing the harm requires more taxpayer funds. A little more respect for this abuse of power and the total loss to taxpayers, would be nice.
I do think, Professor, that the Chief Justice may have decided to frustrate your lofty ambition “to make the Court more accessible.” He seems to just raise the Court’s reasoning to loftier stratospheric levels where only the very powerful can have access!
Have a great day!
Peace.
Michael
The analysis of Administrative stays is as usual impeccable but it misses one important point Steve mentions the USPS “final “? rule on Vote by Mail and the Postal Service self imposed stay But this ignores the fact that USPS rules are arguably subject to review by a Circuit Court under the Administrative Procedures Act. Even if the Administrative Stays are dissolved it means only that Trump has the power to “request “ USPS to do his bidding. The Ruke is still arbitrary capricious and contrary to Law
Professor Vladeck complains (rightly) about C.J. Roberts administrative stay. But what was also problematical was the D.C. Circuit’s April 17 administrative stay. That stay endured for 4 months while members of the court wrote long majority and dissenting opinions. During those critical months Trump’s construction crews were enabled to work (apparently day and night) to get a big start on building enough of the above-ground part of ball room and claim it is now too late to stop as it would leave “a 70-foot superstructure to degrade and possibly collapse in high winds”.
The Solicitor General himself credits the D. C. Circuit’s 4-month stay as a cause for the predicament: He remarks “ Further, the court of appeals’ stays have allowed construction to proceed ‘beyond the point of return,’ making the costs of stopping now—with a not-yet-stabilized superstructure vulnerable to weather—very much not a problem of the government’s sole creation.“
Roberts’ decision to allow continuation of the building of a new ballroom – and an underground bunker/military facility ? – is another example (not that we need any more) of his willful blindness to blatantly obvious and avoidable harmful consequences of his decisions. As well as illegal,according to commentators more versed in the law than I. If possession, as the saying goes is nine-tenths of the law, then substantial construction (on the ground, above and below the ground in this case) is 95%+ of the case against illegal building. I think in future we should only call him by his name, because putting “Justice”, let alone “Chief Justice” next to Roberts is a more obvious and striking example of an oxymoron than the classic one of “Jumbo Shrimp”.
I wonder if Trump has access to the plans for Hitler’s underground bunker of the architect Albert Speer who died in London in 1981? And who will play the role of Eva Braun if the bunker becomes the last stand of this regime? There are several candidates for this role.