CJ Roberts Starts Off The New Year With An Old Error

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.

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