Or Court-Shrinking

The back-and-forth on dramatically increasing the lay out of federal district too circuit judges is first-class stuff. I'm especially pleased that my friend Brian Kalt, who is a terrific scholar, instantly has a proposal named for him coined yesteryear unopen to other friend, Richard Primus, who besides does fantastic work.

Having said that, I desire to comment that Richard's hypothetical Idaho scenario is non far removed from what occurred inwards 1802 when Congress engaged inwards "court-shrinking." In 1801, the outgoing Federalist Congress enacted a Judiciary Act that created many novel circuit judgeships. President Adams too then appointed (and the Senate confirmed) many novel circuit judges. (These were the infamous "midnight judges.") One twelvemonth later, a Jeffersonian Congress repealed the 1801 Act.

What happened to the circuit judges confirmed inwards 1801? The respond is that they were fired. But how tin lav that be? Didn't they have lifetime appointments dependent area to removal entirely yesteryear impeachment? And fifty-fifty if they could last stripped of their ascendancy (as per Richard's hypothetical of a "rotten circuit"), weren't they at to the lowest degree entitled to line their judicial salaries for doing nothing?

An outstanding Note from v years agone went into these questions. (Jed Glickstein, After Midnight: The Circuit Judges too the Repeal of the Judiciary Act of 1801, 24 Yale L.J. Human. 543 (2012). Glickstein works life that the Midnight Judges considered a constitutional challenge to their removal, merely decided instead to antechamber Congress to pay them their salaries. Congress refused to appropriate the money, too that's where the combat ended.

One determination you lot could line from this precedent (which was business office of an era of constitutional hardball) is that Congress tin lav engage inwards court-shrinking inwards reply to court-packing. Or maybe at that topographic point is the to a greater extent than small-scale determination that Congress should pay judges sent into Kalt Law limbo for their troubles, fifty-fifty if such payments are non constitutionally required. Or how close nosotros plough away from this nonsense too focus on to a greater extent than pertinent problems.