One of the most absurd lies coming from the mouth of a SCOTUS justice came from Justice Alito just last year: “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” It is not even conceivable that Justice Alito believed what he said. Multiple provisions of the Constitution clearly and emphatically did exactly what Justice Alito said they did not.
As Justice Alito knew well, Article I states the point clearly, directly and emphatically: “The Congress shall have Power” to “make all Laws which shall be necessary and proper for carrying into Execution” absolutely “all” the “Powers” that were “vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Article VI directly emphasized that all federal judges are “judicial Officers” of “the United States,” and they all must be (and are) “bound by Oath or Affirmation” (written by Congress and enacted into two statutes) “to support this Constitution.”
Justice Alito necessarily swore both such oaths (created by Congress) more than once before he assumed more than one office as a federal judge. Each federal judge must “support and defend the Constitution” against “all enemies, foreign and domestic” (including federal officials attacking the Constitution) and “faithfully [to the Constitution] discharge [all] duties of [his or her] office.” 5 U.S.C. § 3331. “Each” federal “judge” must “administer justice” and “do equal right to” all persons and “faithfully [to the Constitution] and impartially discharge and perform all” professional “duties” under “the Constitution and” federal “laws.” 28 U.S.C. § 453.
The first section of Article III specifically also emphasized that “Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour.” That necessarily and emphatically implies they may be removed for bad behavior. Congress clearly has the power to establish what judicial behavior is bad.
In The Federalist No. 78, Alexander Hamilton emphasized that holding judges to “[t]he standard of good behavior” was meant to be “one of the most valuable of the modern improvements in the practice of government.” Such standard was included in Article III to be an “excellent barrier to the encroachments and oppressions of the representative body [of federal judges] as the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” “No” official “act” whatsoever that is “contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.”
In The Federalist No. 80, Hamilton observed, “[i]f there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number.”
Amendment X emphasized that federal judges have only such “powers” as the people “delegated” to federal courts “by the Constitution.” Article III emphasized that all federal “judicial Power shall extend” no further than permitted “under” our “Constitution” and federal “Laws.” Article VI emphasized that our “Constitution” and federal “Laws” (and treaties) are “the supreme Law of the Land,” and all “Judges” are “bound thereby” despite “any Thing” anywhere else “to the Contrary.” As Amendment V emphasized, “No person” may be “deprived” of “life” or any “liberty” or “property” by any judge “without due process of law.”
Congress clearly has enacted even criminal laws regulating the conduct of SCOTUS justices. Any judge acting “under [even the] color of any law” or “custom” to “willfully” deprive any person “of any rights, privileges, or immunities secured or protected by” any provision of the “Constitution” or any federal “laws” commits a crime. 18 U.S.C. § 242. No judge or judicial action or custom is exempt, including so-called deference, comity, reciprocity, res judicata, presumptions or pretenses. In Section 242, the “qualification” regarding “alienage, color and race” is inapplicable “to deprivations of any rights or privileges.” United States v. Classic, 313 U.S. 299, 326 (1941).
Right now, SCOTUS also is considering a point that was emphasized (repeatedly) by SCOTUS, itself. See United States v. Trump, 91 F.4th 1173, 1191 (D.C. Cir. 2024) (quoting United States v. Lee, 106 U.S. 196, 220 (1882)):
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. [The law] is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
The D.C. Circuit in Trump emphasized that “Judges” clearly can be punished under “criminal laws” for “official acts,” including the “notable example” of knowingly “violating a federal statute.” For support, they cited Ex parte Virginia, 100 U.S. 339 (1880) (which Justice Thomas also is fond of citing). In that decision, SCOTUS emphasized that judges certainly can be prosecuted for criminal misconduct, even when it was purportedly “official” conduct. SCOTUS emphasized that “holding an office” cannot “relieve the holder from obligation to obey the Constitution” or diminish any “power” of federal criminal law to “punish his disobedience” by means of purported official acts.
Congress clearly should enact more laws regulating the conduct of SCOTUS justices. The first should emphasize our First Amendment freedoms. No SCOTUS justice or other federal judge should (as too many currently do) feel free to retaliate against lawyers or litigants who expose or oppose the lies and crimes of judges.
James Madison (whom many called the Father the Constitution), said that the Constitution, as written, was a "dead letter, until life and validity were breathed into it by the voice of the people, speaking through" the "State Conventions." So in searching for "the meaning" of the Constitution, if we look "beyond [its] face" we "must look" to the "State Conventions, which accepted and ratified the Constitution."
James Wilson commenced the campaign to ratify the Constitution in Pennsylvania with a famous speech on October 6, 1787. One assurance he offered Americans is that "the proceedings of the supreme court, are to be regulated by the congress, which is a faithful representation of the people." Wilson, a lawyer, went on to become an eminent professor of law and a justice of the U.S. Supreme Court.
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