How far can Congress probe the judicial thought process?

Over at the Volokh Conspiracy, Josh Blackman has a fascinating post (really, a series of posts) about the efforts of ten Democratic Senators to force two Eleventh Circuit judges to “explain” their involvement in Florida’s felon disenfranchisement cases.

The brief background is this: the Florida Supreme Court heard oral argument on a challenge to state legislation conditioning the restoration of a convicted felon’s right to vote on the payment of legal financial obligations. Two of the Justices on the court at the time, Robert Luck and Barbara Lagoa, had been nominated for seats on the Eleventh Circuit Court of Appeals. Both Justices asked questions during oral argument, but were confirmed to the Eleventh Circuit just weeks later. Accordingly, neither Justice had any role in the outcome of the case.

On July 15 the plaintiffs, having sought review in federal court, requested that both judges recuse themselves from the Eleventh Circuit’s deliberations. The request was grounded on the fact that the judges had merely asked questions during oral argument while on the Florida Supreme Court, even though they had taken no part in the decision. (This was factually reminiscent of the Ninth Circuit case of Yovino v. Rizo, involving a judge who had voted on a case but died before it was announced; here, however, the judges did not vote at all.)

Professor Blackman had a very sensible take whether recusal was necessary in the Eleventh Circuit case:

Judges are allowed to change their views. And that malleability is a good thing. I would be troubled if judges walked into arguments with a set predisposition, that could not be disturbed.

Yovino demonstrates that a Judge’s questions during oral arguments, and even a conference vote, are not “immutable.” Judges are allowed to keep an open mind till late in the game. These preliminary matters are not enough to question a judge’s impartiality. The only decision that counts is the final order. Judges Luck and Lagoa did not participate in the Florida Supreme Court’s published decision. Therefore, they are not disqualified.

But it’s 2020, and legal arguments aren’t good enough for the political class. Hence, the subpoenas. Blackman’s take (which you should read in its entirety) concludes:

I have serious doubts about whether Congress has the power to subpoena a judge to testify about internal judicial matters. I think Congress could justify that subpoena as part of an impeachment inquiry. But a general need for information to craft legislation would not be suitable.

I am not a constitutional scholar, but that strikes me as correct.

2 thoughts on “How far can Congress probe the judicial thought process?”

  1. Important issue, interesting as well. Just worth to note:

    The respectable author of the related article, claims, that judges, don’t have immunity (directly prescribed in the constitution) only Congress members (speech and debate). The independence according to him, derives from tenure for the whole life (prescribed therein). Yet:

    The Supreme court, held clearly, that judges are immune from any lawsuit, concerning an action ( civil) fulfilled while carrying out their judicial duty. So:

    We have jurisprudence then.And deeply rooted principle by the way.

    Now, concerning subpoenas:

    One may claim, that even for legislative purposes, it is not possible. Why? This is because, and beyond issues of independence, the court itself, can invalidate laws, made by Congress (as done frequently). This is in fact, is prescribed in the constitution. I quote the relevant part, of the First amendment:

    ” Congress shall make no law ….”

    So, if Congress shall make such law, courts, and only courts, shall grant the right remedy, and invalidate it. For, if Congress can’t, means, that third party shall invalidate it ( the courts) not the Congress itself of course ( invalidating its own action). Now:

    One may argue, that it can’t touch solely the first amendment,and, not the fourth for example. As such:

    There is no point ( besides impeachment) to issue subpoena, to judges,for legislative purpose, while:

    Courts, are always on top in this regard. They are the ultimate legislator. They are the body, the only body, authorized, to decide, what is the law, and what law is constitutional and valid, and what law not.


    Liked by 1 person

  2. Just to quote the sixth circuit, in: HLV v. Van Buren:

    Judicial immunity shields judicial officers not simply from a judgment awarding damages—but also from the suit itself. Id. at 11. And the doctrine is expansive, applying even when a party alleges that the judge acted maliciously or violated its constitutional rights. Bright v. Gallia Cty., 753 F.3d 639, 648–49 (6th Cir. 2014)


    Indeed, the Supreme Court cautioned that judges would act “timid[ly]” without immunity and that this behavior “would manifestly detract from independent and impartial adjudication.” Id. Immunizing judges from civil liability helps prevent that reality by allowing judges to “exercise their functions with independence and without fear of consequence.” Pierson v. Ray, 386 U.S. 547, 554 (1967) (citation and internal quotation marks omitted). But there is a cost: one incidental effect of judicial immunity is that judges who have abused their position may escape civil liability.

    And :

    There are two exceptions to judicial immunity, and HLV claims that both exceptions apply here. First, a judge may be held liable for “nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.” Mireles, 502 U.S. at 11 (citation omitted). Second, a judge may be held liable for judicial acts he takes “in the complete absence of all jurisdiction.”


    Click to access 19a0276n-06.pdf

    Liked by 1 person

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