Ail to the Chief

The dark underside of life tenure for Supreme Court Justices is the difficulty of removing an obviously ailing Justice even after his or her capacity to serve has seriously deteriorated.  However, despite the absence of effective formal removal mechanisms, Chief Justices have sometimes been successful in nudging declining Associate Justices off the bench, as in the cases of Justices Holmes and Douglas.  But what is to be done if it is the Chief who can no longer serve?

That is the question explored in a new paper on SSRN by Chad Oldfather and Todd Peppers.  Although other scholars have grappled with the general problem of disability on the Supreme Court, Oldfather and Peppers identify two reasons why the problem is especially acute when it comes to the Chief.  First, it is much more common for Chief Justices than Associate Justices to serve until the time of death or a major disability.  Only four of the past sixteen Chief Justices have retired while in good health.  (Oldfather and Peppers use the decline and passing of the late William Rehnquist as a case study of the more typical pattern for Chief Justices.)  Second, the Chief is not merely one of nine adjudicators on the Court, but also serves as the administrative head of the entire federal judiciary.  For that reason, the incapacitation of the Chief Justice may do much more damage than the incapacitation of an Associate.

Oldfather and Peppers do not advocate for a particular solution, but they do urge consideration of various potential reforms, such as the imposition of a term limit on the Chief Justice.

Entitled “Till Death Do Us Part: Chief Justices and the United States Supreme Court,” their paper will be published in the Marquette Law Review.

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Defendant Can Raise Tenth-Amendment Challenge to Her Conviction, SCOTUS Rules

Earlier today, in Bond v. United States (No. 09-1227), the Supreme Court ruled that the defendant should have been permitted to raise a Tenth-Amendment challenge to the chemical-weapons statute that she was convicted of violating.  In response to her indictment for violating 18 U.S.C. § 229, Bond had argued

that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07-cr-00528-JG-1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a third of her federal sentence.

The Third Circuit, however, ruled that Bond lacked standing to raise her constitutional objections.

In reversing this decision, the Court did not address the merits of the objections.  As a result, it’s hard to say whether there is any sympathy on the Court for the basic claim that the Tenth Amendment may be violated when a federal law criminalizes conduct that is “local in nature.”  Still, it is interesting to put Bond alongside last month’s decision in Fowler, in which the Court cited similar federalism concerns in rejecting an expansive interpretation of a different federal criminal statute.  Perhaps the Court is entering a new phase of heightened concern over the federalization of criminal law.

Cross posted at Life Sentences Blog.

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Sentencing Judge May Not Lengthen Prison Term in Order to Promote Rehabilitation

Earlier today, the United State Supreme Court ruled that federal judges may not impose or lengthen a defendant’s sentence in order to promote rehabilitation.  In Tapia v. United States (No. 10-5400), the district judge apparently selected a sentence at the very top of the recommended guidelines range in order to give Tapia time to complete the Bureau of Prison’s Residential Drug Abuse Program (a/k/a the 500 Hour Drug Program).  The Supreme Court rejected this reasoning as a straightforward matter of statutory interpretation: 18 U.S.C. § 3582(a) instructs sentencing judges to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

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