CJ Roberts Starts Off The New Year With An Old Error

Yes, the Articles of Confederation provided for judges and courts.

As is tradition, Chief Justice Roberts released his year-end report. On page 2, there is a glaring error:

After securing independence, the fledgling United States did not immediately set about creating a national judiciary. Indeed, among the many defects of the Articles of Confederation, the absence of any mention of a judicial branch—or judges at all—seems particularly glaring.

The Constitutional Convention of 1787 remedied that oversight.

A simple CTRL-F of the word "judge" and "court" in the Articles proves this statement is wrong.

Article IX spells out a fairly involved process for appointing judges to courts to settle disputes over piracies, felonies on the high seas, and captures:

The united states, in congress assembled, shall have the sole and exclusive right and power of . . . appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts; for receiving and determining finally appeals in all cases of captures; provided that no member of congress shall be appointed a judge of any of the said courts.

Indeed, there is a judicial incompatibility clause, which barred delegates from serving on these courts. Seth Barrett Tillman and I discussed this provision in Part IV of our ten-part series.

There is also a process by which Congress could appoint judges to settle a controversy between states:

Whenever the legislative or executive authority, or lawful agent of any state in controversy with another, shall present a petition to congress, stating the matter in question, and praying for a hearing, notice thereof shall be given, by order of congress, to the legislative or executive authority of the other state in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question . . .  and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive.

I always appreciate the Chief's prose, but sometimes the attention to detail in these reports takes a back seat to his broader narrative.

Comments

[Area Man]

Roberts also continued his long-running lie that many federal judges aren’t partisan hacks. Most aren’t. But an increasing number—especially since the end of the judicial filibuster—are just there to advance their team’s agenda. If they happen to also get the correct legal result from time to time, all the better. But that’s not really their goal. Roberts would do well to stop complaining about the public and other branches, and instead start looking inward, including himself.

[Noscitur a sociis]

I don’t know which would be more pathetic… that Prof. Blackman is actually deluded enough to think that this undermines Chief Justice Roberts’s point, or that he’s disingenuous enough to try to make the argument anyway, or that he has a low enough opinion of his audience to believe that they might actually be fooled.

[Brett Bellmore]

So, what do you think his point is, then, that a major mistake like that wouldn't undermine it?

[Noscitur a sociis]

If you think this is a mistake of any kind, much less a major one, then perhaps Prof. Blackman has a more accurate measure of your gullibility than I do.

[Brett Bellmore]

"Indeed, among the many defects of the Articles of Confederation, the absence of any mention of a judicial branch—or judges at all"

I think Blackman's jibe about attention to detail hit its mark.

[hobie]

Heh. You actually came up with, and then strung together those two sentences. Apart from massaging your MAGA thinking, do you really think Blackman's diatribes have any merit?

[Michael P]

Just once, it would be amusing to see you try to address the actual substance of the discussion. Just try.

[MaddogEngineer]

Sorry, no. This is just Blackman nitpicking the chief's words, out of any context.

The kind of federal judicial protections Roberts was pretty clearly referencing did not exist under the articles. A judiciary that could vindicate an individual's rights against government. Admiralty/prize courts are not that.

At some of the Constitution ratifying conventions, it was suggested (legitimately) that Congress need not ever establish any inferior federal courts. Just like under the articles, existing state courts could be granted federal jurisdiction. Absurd in hindsight given our experiences under the Constitution, but absolutely the mindset of antifederalists back in the day. If the Confederation Congress had ever obtained unanimity to do anything related to interstate commerce, such an arrangement could have been implemented.

One of the key practical reason for a lack of federal officials under the articles was the lack of any revenue source to pay them. I presume such economy also continued/contributed to that anti-federalist mindset under the Constitution.

[Yogis_dad]

The only point Chief Justice Roberts has is on his head. His comments attack the First Amendment and assert judiciary primacy not found in the Constitution. Other than that, you're totally ,,, nevermind.

[Bored Lawyer]

He caught him in a very sloppy statement. If such sloppiness were to be submitted in a brief to a court, the judges would rightly take it as a sign that (a) counsel is not very good and (b) the party's arguments ought to be reviewed with some skepticism.

So, yes, it's not a good sign when the Chief Justice of SCOTUS is caught in a mistake that a first-year associate would be chewed out for making. That the CJ's arguments might still be valid does not detract from the criticism.

[Noscitur a sociis]

I would much rather be the associate who put Roberts’s statement in a brief than the associate who suggested saying “actually, the character sequence J-U-D-G-E-S does appear in the articles of confederation!” And I have enough respect for your legal abilities and professional judgment to doubt that anything but performative contrarianism is motivating your pretense to feel otherwise.

[Soronel Haetir]

I see a great deal of difference between Admiralty courts as well as tribunals for disputes between states and courts of general jurisdiction.

Your post does not indicate that anything like the latter was contemplated by the AoC.

[ReaderY]

There weren’t even tribunals for disputes between states in the ordinary sense. There were ad-hoc arbitration panels appointed by the states involved in each dispute to decide that one dispute. The federal government didn’t have any say in their members. They could decide the one matter before them any way they wanted. They didn’t have to follow any particular body of law.

[Brett Bellmore]

It's still a fact the the Articles DID mention judges, so thr dig at Roberts' attention to detail is merited.

[Noscitur a sociis]

So if I’m following: per Brett Bellmore, a U.S. Magistrate Judge isn’t a real judge, but someone wh is supposed to decide who is how much money to award capturing enemy ships is.

What about line judges in a football game or tennis match? How about the person who judges a beauty pageant, dog show, or pie eating contest?

[ReaderY]

It’s substantially true. The only actual federal courts were admirality courts. The “courts” for addressing disputes between states were essentially ad-hoc arbitration panels appointed by the states themselves to judge the individual dispute, not federal courts in any meaningful sense.

This means that in fact, there were no federal courts with any jurisdiction within the United States. The admiralty courts only had jurisdiction over captures and matters on the high seas, and the ad-hoc arbitration panels, whose members were selected by mutual agreement among the states involved in the particular dispute, essentially private in nature (much like arbitration panels today), and hence were not federal courts.

This is hardly a national judiciary in any meaningful sense.

[Syd Henderson]

This doesn't resemble the federal judiciary at all. Blackman is embarrassing here.

[Bored Lawyer]

"It’s substantially true."

I take it you practice law. If you put such a mistake in a brief, and the Court called you out on it, would you proffer that as a defense? "Yeah, judge, my statement is demonstrably false with 30 seconds of a word search, but, still, it's substantially true."

I'd be groveling and hoping the judge doesn't hold my stupidity against my client.

[Sarcastr0]

Is the Court in this analogy Prof. Blackman?

You're papering over Blackman's petty pedantry by changing the context.

[Sarcastr0]

De minimis solo curat Blackman.

[Flight-ER-Doc]

Roberts seems fatigued. Perhaps it's time for him to retire?

[Noscitur a sociis]

Some scholars have even demanded it!

[Dr. Ed 2]

See: https://www.oklahoman.com/story/news/2007/07/31/roberts-wont-be-billed-for-ambulance/61743404007/

I always thought it was more than just epilepsy for him to stay overnight in the hospital, and that was 2007. We are talking 17 years later now, and we don't know what is in his medical file.

The "Wise Latina" is an aging diabetic, we don't know about Roberts either, and Trump may have two more appointments to make. (Isn't the POTUS record four?)

[David Nieporent]

(Isn't the POTUS record four?)

No. As always, this has been yet another episode of Simple Answers to Stupid Questions. (To be clear, this question is stupid not because of its premise like the usual Dr. Ed question,¹ but stupid because it's so obviously wrong and so easily checked.) Washington appointed 11. FDR appointed 8. Even if you caveat both of those (Washington had to fill the entire bench, and FDR served 3+ terms), you've still got Taft, Jackson, Lincoln and Eisenhower who all appointed 5.
​
​​
¹I take that back. "John Roberts spent a night in the hospital 17 years ago, so Trump might have to replace him" is pretty damn stupid as a premise.

[JoeFromtheBronx]

Taft appointed Lurton, Hughes, White (elevated to Chief Justice), Van Devanter, Lamar, and Pitney.

Jackson appointed McLean, Baldwin, Wayne, Taney, Barbour, and Catron.

FDR appointed eight new justices (one replaced another short-term FDR appointment) and elevated Stone to CJ.

[David Nieporent]

I'm not counting elevating an associate justice to chief justice as a new appointment.

[JoeFromtheBronx]

Not enough discussion out there about the Articles of Confederation. Yes, it mentions judges "at all."

It's a limited error but error it is. The wider concern is referenced by Chris Geidner.

https://www.lawdork.com/p/john-roberts-attacks-court-criticism?lli=1&utm_source=%2Finbox&utm_medium=reader2

[Dr. Ed 2]

Yes. Roberts wrote:
"I feel compelled to address four areas of illegitimate activity that, in my view, do threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.

This is the "speech is violence" bullbleep that has been percolating throughout the cesspools of higher education for the past 30 years. It can be basically summarized as being the belief that saying "I think you are wrong" means that "I am going to murder you unless you agree that you are wrong."

There are a LOT of logical fallacies in that, starting with slippery slope, but at its most basic it presumes that there is no social order, no "thou shalt nots" that people will honor.

For example, I think the econazis are wrong in blaming the Maine Lobster Industry for the decline of the whales. They want to ELIMINATE the lobster fishery (hint -- that means no more lobster dinners) and reduce my family and friends to utter poverty. But I am not going to go shoot those schmucks.

In fact, if they do something stupid and capsize one of their boats, we will fish them out of the bay and put them into fo'c'sles, trucks, and shops that are as warm as we can get them and try to find some dry clothes for them. Because they are human beings.

Roberts has a summer home on Hupper Island in St George, Maine. When he had an epileptic attack and injured himself, the St George VOLUNTEER Ambulance Crew borrowed (i.e. took) a small boat and went over and carted him to the hospital. For free, because that is how it is done in rural Maine. And I have no doubt that some of the people involved vehemently disagreed with some of Roberts' decisions.

When I was teaching high school civics, the chapter on free speech included a photo of an "Impeach Earl Warren" billboard. Now I'm way too young to have seen any of those, and billboards have largely been banned for much of my life, but I assume it was a real picture.

That's called "free speech." Calling the Judge "Loose Cannon" is both sophomoric and detracts from what I presume is a defensible argument, even if it is wrong. Far too many judges think that they are royalty and that is a problem -- they deserve to be safe from violence and actual threats thereof, as the rest of us also do but nothing more.

Not in a free society.

[Yogis_dad]

There were Impeach Earl Warren bumper stickers across the land. Warren was widely perceived to be suborned by communists among those who opposed his court's activism. The old liberal saw, "you can't legislate morality" was no impediment to Warren's decisions, using baseless assertions about interstate commerce and the right of Congress to prevent states from having their own tariffs to claim that right of service was extended to all potential customers of any business.

[David Nieporent]

billboards have largely been banned for much of my life,

WTF is Dr. Ed talking about?

[Mr. Bumble]

The Highway Beautification Act (1965?), championed by Lady Bird,
banning billboards from interstate and primary federal highways?

[David Nieporent]

I am aware of that. Do you and/or Dr. Ed think that most roads in the United States are interstates?

[Dr. Ed 2]

What I don't understand is why the 11th Amendment didn't come into play here, as it pretty much was intended to prevent situations like this.

The more I read about John Marshall, including this, the more surprised I am that the Republicans didn't impeach him. They had a 2/3 majority in both branches of Congress.

[Noscitur a sociis]

Situations like what?

[Dr. Ed 2]

The problem people run into is thinking that the Confederacy (i.e. Rebel South) was a confederacy.

It wasn't -- it actually was a republic.

The United Nations is a confederacy -- and like all confederacies, it really can't have judges because it lacks the sovereign authority to enforce judgments -- Israel is not going to surrender Bibi N. to stand trial at the UN's Kangaroo Kort.

What disappoints me is how few people realize the distinction between a confederacy and a republic, and that includes our Chief Justice.

Mr Justice Roberts: In a confederacy, judges are mediators and nothing more -- at best it might be binding arbitration but never anything more because they lack sovereign authority which does not exist in a confederacy.

The UN can send the US a bill, and Donald Trump can tell the UN to go fire truck itself -- with five fewer letters.

[Drewski]

The Confederacy was neither of those things, as it had no legitimate sovereign power. It was an informally-incorporated association of traitors.

It also had little to do with the Articles of Confederation. Honestly not sure if you're being genuinely dumb bringing it up or just trolling.

[Dr. Ed 2]

You are co-mingling three distinctly different things.

1: A state is SOVEREIGN if it has the sole, exclusive, and legitimate right to use force over a territory. This means that other states either (a) recognize the state's sovereignty and/or (b) don't want to contest it. The CSA failed both tests -- the US did NOT recognize its sovereignty *and* successfully contested it.

2: The FORM of the government does not reflect on its sovereignty. "[A]n informally-incorporated association" (your words) is, pretty much by definition, a "confederation" or "confederacy."

3: The LEGITIMACY of a government is what other governments (and peoples) think of it, including their willingness to have diplomatic relations with it. For example, we do *not* have diplomatic relations with Iran because of what happened to our embassy 45 years ago -- we ask the Swiss Government to look after American interests in Iran.

Hence while your "of traitors" is technically true (I argue that ethically it is a wee bit more complicated), that has nothing to do with the fact that it (a) was a confederation which (b) lacked sovereignty.

As an aside, do not forget that one of the British objectives on April 19, 1775 was to arrest Samuel Adams and John Hancock, whom they considered to be "traitors."

[ObviouslyNotSpam]

Genuinely something...

[hobie]

Happy New Year to everyone. In my inner city hood the negroes have been lining up outside the vape shop all day to stock up on legal weed. The corner store the same for booze. If tonight is like last year, at midnight there will be a terrible conflagration of gun fire from every house around me. Not a single firework will be used...all bullets.

I know all you hayseeds have, presumptively, been stocking up on guns and ammo because government something something. But we all know it is because fear of brown people. News flash, the brown people are as armed as you. I'm about to experience it myself tonight. So you can keep going Soviet and hope you buy enough weapons to achieve M.A.D....but the real answer is plow shears. I can tell you from lived, personal experience...these brown people do not want to kill you

[Dr. Ed 2]

" Not a single firework will be used...all bullets."

No tracer rounds or flares being fired out of 12 gauge shotguns?
And they call this "fun"?!?

"Fun" is trying to shoot down one flare round with a second one -- let's just say this is best done over water because you've got burning something coming down, and it would be rather doublenotpleasant to have to put out a brush fire at 1AM while drunk.

Birdshot works quite well, but actually hitting it with another flare, you wind up with a lot of flares going into the harbor... And yes, this is a violation of USCG regs, but the same USCG says that you have to buy new flares for the new year, so what are you going to do with the old ones?

News flash, the brown people are as armed as you.

In most cases because they are afraid of OTHER brown people -- people who ought to be in prison. You do know that brown perps most often victimize brown people...

I can tell you from lived, personal experience...these brown people do not want to kill you

MOST of them. But we fear the same people they fear -- the same INDIVIDUALS who ought to be in prison. How about the brown person who lit a woman on FIRE in a NYC subway train??? (And we don't even know what color her skin was.)

And it is incredibly racist not to realize that.

[Dr. Ed 2]

A good Fourth of July celebration includes someone touching off sticks of dynamite except (a) it's done during daylight, and (b) by someone who is sober, and (c) knows how to do it more or less safely. There is a community consensus on this....

[Carl_N_Brown]

"... USCG says that you have to buy new flares for the new year, so what are you going to do with the old ones?"

Orion (maker of flares and flare guns) recommends firing out of date flares horizontally across open water (no swimmers or boats) during daylight.

I have disposed of flares by firing them in the tunnel of an abandoned rock quarry, or over a snow covered field in a snow storm with no one to see them (once), or simply fired them into a bucket of water.

Fired into the air, flares come down hot enough to be a fire risk.

I definitely do not recommend firing flares as celebratory gunfire.

[The Margrave of Azilia]

Oh, man, you'll have *such* a headache tomorrow.

[Brett Bellmore]

I live in the South. Know what that means?

Yeah, my neighbors, who are black, have been stocking up on guns and ammo because of government something something, too...

If I were afraid of blacks, why would I have bought a house in a neighborhood that's about half black?

[Dr. Ed 2]

The only problem with stocking up on ammo (beyond a certain point) is that it will greatly accelerate a house fire. The bullets won't fire -- the brass will rip instead -- but the rounds very much will "cook off."

[Carl_N_Brown]

Metal military ammo cans with latchable lids. By the time the ammo cooks off in a fire, the rubber gasket will have melted and the rounds will flair off, shooting flames under the lid but no Marvin the Martian "earth shattering Kabooms".

The plastic "look alike" ammo cans are less useful in a fire. But I watched a video of a simulation of a fire in a simulated gunshop with well-stocked ammo shelves. The cooking off ammo would also disappoint Marvin.

[Yogis_dad]

Roberts has frequently missed the mark, and the nation would be well served by his retirement during President Trump's upcoming term. It would be a good time for the Supreme Court to read the Constitution and to revisit Marbury v. Madison to put its purview back in the box the founders described.

[Dr. Ed 2]

I have long wondered if he was the victim of extortion.

[Noscitur a sociis]

I’m sure* you have, but that’s because you’re an idiot.

*I should probably take that back: I actually wouldn’t be surprised if Dr. Ed is only pretending to have believed this for a long time because, well, it’s Dr. Ed.

[The Margrave of Azilia]

The problems of enforcing an Articles-of-Confederation admiralty decision:

https://founders.archives.gov/documents/Madison/03-01-02-0117

[Dan Schiavetta]

The Seventh Amendment was adopted exactly because there had been no such thing as federal courts. They didn't want (the new) federal courts acting differently than state courts -- as to the right to a jury trial, or appellate review.

"In Suits at common law [i.e., the law that prevailed in state courts], where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

[Brett Bellmore]

Pet peeve of mine: Notice that the Court has just handwaved away that $20? They could have stuck with $20 in modern currency. They could have adjusted for inflation. They could have gone with the present market value of the silver content of 20 Spanish "dollars", the popular coin of the era that the US adopted as its own. They could have figured it in terms of relative wages. There were lots of ways for them to give that text meaning.

No, they just threw that part right out, along with the "all" in the 6th amendment...

[Noscitur a sociis]

No, I haven’t noticed that. What case do you have in mind?

[ObviouslyNotSpam]

I'd have expected at least one reported case about this matter--have you looked?

[NellieBly]

The report seems to have sparked gleeful cries of 'gotcha' concerning the Chief Justice, who is the darling of I know not what persons or factions.
Perhaps he was pointing out that the initial concepts would be that federal disputes would be presented to the legislative branch which in turn would appoint judges or panels as needed. I do not know and do not have the time to research this. Nonetheless it seems a point for the petty, delightful though it may appear to be.

[Zarniwoop]

“Technically correct - the best kind of correct!”
https://m.youtube.com/watch?v=hou0lU8WMgo

[ThePublius]

I know it's not Thursday, and this isn't an open thread, but in case anyone's listening and cares:

Do you think that, generally, Chinese made tools are gradually getting better? This was spurred by my recent investigation into anvils: fairly simple tools that are a good barometer of quality of materials and manufacture. One still cannot beat an American or British anvil, but for price/performance the Chinese ones are certainly ahead, and getting better every year.

Just wondering if anyone here cares to discuss or comment.

[Mr. Bumble]

I'm sure the Roadrunner will be happy to hear that. Those damn Acme anvils are expensive.

[ThePublius]

Ha, ha! I would love to have an Acme anvil ("Acme" meaning a U.S. made anvil). They are incredibly expensive, at least to people who are not in the craft. Gee, it's just a hunk of cast steel, how much could it cost? Ha, ha. A reasonable Chinese anvil is on the order of $2.00+/lb. A good, vintage U.S. or U.K. anvil can be ten times that!

If interested, check out parts 1, 2, and 3 of this gentleman's youtube videos on the one I just bought:
https://www.youtube.com/watch?v=vrvG4gvjoxI

[ObviouslyNotSpam]

The Chinese are now capable of making cheap junk, consumer goods and spacecraft.

As the old hot rodders used to say: "Speed costs money. How fast you wanna go?"

[ThePublius]

I confess I don't get your point.

[jdgalt1]

Granted this is slightly off topic. There's no open thread today.

Chief Justice Roberts wrote a piece in The Hill today, basically admitting that he is in denial about the rampant corruption and political bias that motivates most of our country's judges, both state and federal. He wants the public and the other two branches to shut up and put up with whatever lawfare they want to practice, and in saying so he proves himself unfit for the office he holds.

[jdgalt1]

I've archived the article before it goes away. https://archive.ph/zpPMK