General Discussion
In reply to the discussion: About this Senate jury... [View all]onenote
(44,921 posts)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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