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onenote

(44,921 posts)
23. Whatever rationale or rationales or lack thereof subscribed to by five justices
Thu Jan 23, 2020, 10:33 AM
Jan 2020

I'm being a bit facetious, but the hard, cold reality is that there is no further review of a SCOTUS decision. It's the end of the road. As a result, whatever outcome garners the support of at least five justices stands. The rationale or rationales that each justice has for supporting a particular outcome -- good, bad, indifferent or non-existent -- is effectively irrelevant.

That being said, the Court probably would cite the Nixon v. US precedent and the reasoning of the majority opinion in that case: namely, that an issue is non-justiciable where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." The Constitution clearly contains a textual commitment of impeachment trials "solely" to the Senate and there are only three very specific requirements for such trials: the oath or affirmation requirement; the requirement that the CJ "preside" when the President is tried, and that no one shall be convicted without the concurrence of 2/3 of the Senators present.

The Court almost certainly would conclude that there is no judicially discoverable and manageable standard for imposing an "attendance" prerequisite on those permitted to vote in an impeachment trial, given that absence of any such "attendance" requirement in the Constitution. What level of attendance would the Court presume was required in the absence of any such mandate in the Constitution? 100 percent? 90 percent? 50 percent? Would the courts be called upon to quiz those in attendance to determine if they were paying attention?

The transcript of the trial is available to every Senator in the Congressional Record the day after each session. The Supreme Court itself recognizes that the availability of written briefs and transcripts of oral presentations is an adequate substitute for actually attending a Supreme Court argument. That is why the fact that Justice Ginsburg has missed several oral arguments this year does not disqualify her from participating and casting a vote in those cases. And it is why the Court will follow Nixon v. US if someone (who?) wanted to challenge an impeachment verdict on the grounds some of the votes were cast by Senators who did not attend the trial.

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About this Senate jury... [View all] yellerpup Jan 2020 OP
I agree 100% Ohiogal Jan 2020 #1
Fair is fair! yellerpup Jan 2020 #7
I know it wasn't possible but, Sherman A1 Jan 2020 #2
Kind of a dream come true yellerpup Jan 2020 #6
They are not a "jury" and this isn't a judicial trial onenote Jan 2020 #3
Thanks for that, onenote. yellerpup Jan 2020 #4
They haven't in this instance. onenote Jan 2020 #8
Would the court hold that they could vote without treestar Jan 2020 #5
It's entirely possible that the Court would find the question nonjusticiable onenote Jan 2020 #9
What rationale could they give for that? treestar Jan 2020 #16
Whatever rationale or rationales or lack thereof subscribed to by five justices onenote Jan 2020 #23
Constitution says "two thirds of the members present" to convict Hermit-The-Prog Jan 2020 #32
It would be tough to write, with a straight face treestar Jan 2020 #35
If they are present, they can vote Coleman Jan 2020 #12
My understanding was that the Republicans in the Senate had established the rules for the trial. Arkansas Granny Jan 2020 #15
The "rules" are really "guidelines" and are intentionally wish-washy onenote Jan 2020 #24
This was a rule that was covered by the media Bayard Jan 2020 #28
The media mischaracterized it. onenote Jan 2020 #34
There should be a little device on their seats . mainstreetonce Jan 2020 #10
Good suggestion. yellerpup Jan 2020 #18
Roberts has no authority to make such a ruling. onenote Jan 2020 #25
Chief Justice Roberts isn't doing his job - he's slacking off dlk Jan 2020 #11
I was hoping for better from CJ Roberts. yellerpup Jan 2020 #19
I've never been a fan and am, sadly, not surprised dlk Jan 2020 #21
You were expecting him to do things he isn't required or allowed to do. onenote Jan 2020 #26
Who? ConstanceCee Jan 2020 #13
I'm sure we could. yellerpup Jan 2020 #20
If the rules say you may not leave and they do, they have just broken the rules. FM123 Jan 2020 #14
Breaking the rules should lead to consequences. yellerpup Jan 2020 #17
Republicans have shown the rules are only for the other guy & for suckers dlk Jan 2020 #22
See post 24: Guidelines, not rules. And wishy-washy at that. onenote Jan 2020 #27
My best hope is that our Speaker is not at all surprised at this point, and empedocles Jan 2020 #29
I am confident our Speaker is prepared. yellerpup Jan 2020 #31
Ya beat me to it: Since when are "jurors" allowed to miss trial sessions?! UTUSN Jan 2020 #30
It puzzles me how this can go unnoticed. yellerpup Jan 2020 #33
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