Scire facias as a check on judicial abuse

The Clarence Thomas flap demonstrates a need to institute the check of scire facias on the Article III Judiciary.

Clarence Thomas clearly has not satisfied the high standard of high crimes and misdemeanors that would justify impeachment.


What if he actually had?


Whether a liberal justice satisfied the same standard while there was a Democratic House and Republican President?

The House of Representatives will not impeach even if he did meet the standard, because they would be handing Biden a gift.

And Democrats would behave the same way if a liberal Justice was involved and a Republican was President.

Impeachment is simply a dead letter at the Supreme Court, short of a Justice going bat â– â– â– â–  crazy and killing someone.

But we still have check of scire facias, even if it has never been implemented.

In English law, a writ of scire facias (Latin, meaning literally “make known”) was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring the defendant to show cause why the party bringing the writ should not be able to cite that record in his own interest, or why, in the case of letters patent and grants, the patent or grant should not be annulled and vacated.

The English common law, as it existed on July 4th, 1776, became the common law of the United States. The meaning of scire facias has not changed in that regard, though the formal writ has been abolished in Federal courts, replaced by civil proceedings.

As the Constitution incorporated the common law of the United States, scire facias has the meaning today that it had in 1787.

And most notably, Article III Judges are appointed to serve during good behavior. The founders did not use the term for life, but during good behavior, which is the determining factor for scire facias proceedings.

Good behavior is a far lower standard than high crimes and misdemeanors. Behavior that might not amount to a high crime and misdemeanor might broach good behavior. A prime example would be a pattern of sexual discrimination or sexual harassment by a judge against his staff. Not something that would be impeachable, but something that would be removable under scire facias.

Now how would proceedings under scire facias actually work.

There are three general scenarios.

  1. The Judge is convicted of a felony or a very significant misdemeanor or misdemeanor involving moral turpitude and the time for direct appeals has expired or direct appeals have been exhausted. In this case, removal from office would be fairly straight forward and expedited.

  2. The Judge is accused of misbehavior or a pattern of misbehavior. This obviously could take many forms, including sexual harassment, abuse of power, etc. The three judge court of equity hearing the case would conduct fact finding, with the concurrence of all three judges required for a fact to be proven. The Judges would then determine if the proven facts amounted to a breach of good behavior sufficient to warrant removal from office and the concurrence of all three judges would be required for removal.

  3. The Judge is accused/suspected of becoming mentally incompetent. Again, fact finding would be done as above and removal would be done as above. However, in this case, the Judge would be able to keep his retirement annuity as proceedings under this section would be considered prophylactic, not punitive.

In all cases, the Judge would have an automatic and direct appeal of right to the Supreme Court.

Because Judges would make the final decision, this would not compromise the doctrine of judicial independence.

Some recent examples.

Judge Kent. Convicted of numerous felonies and in jail, but refused to resign his judgeship immediately. The House impeached him, but thankfully he finally resigned under pressure rather than forcing a time consuming Senate trial.

Judge Porteous. Unfortunately, this jackass wouldn’t resign and forced the entire process to play out, ending with his removal from office and permanent disqualification.

In both cases, proceedings under scire facias could have gotten rid of these Judges a whole lot faster and without wasting Congress’s time on impeachment.

Then there are numerous cases of abuse of power. I will use the example of Judge Alan Albright, who abused the system to end up with fully 25% of all intellectual property cases (in the whole United States) in his court and who refused to grant change of venue, even when it was clearly warranted, requiring the Federal Circuit to repeatedly use mandamus orders to force those venue changes.

Then there was the very abusive behavior of the late Stephen Reinhardt and the late Manuel Real.

Congress neither has the time to police the judiciary, nor do the have the political ability to do so, except in rare cases such as Kent and Porteous.

Scire facias would essentially take Congress out of the mix, except in very rare cases.

I would note that in States such as Florida, the Judiciary is extremely successful in policing itself. Judges who screw up are promptly punished and removed from office if necessary.

We clearly need to bring this vital check on the judiciary back.

In the absence of a formal mechanism, I believe that courts may, sua sponte, conduct scire facias proceedings against a colleague.

The common law is what it is and courts may of right enforce it. A formal mechanism would be better.

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Pretty sure the state judges you speak of are elected, not appointed. The removal of a federal judge is outlined in the constitution.

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The Constitution outranks common law.

John Roberts must be going crazy. He has worked hard to protect the honor of the SCOTUS.

To deal with the first point, my reference to State judges was merely to point out that self policing works, obviously the legal niceties are different.

To deal with the last point by the second poster, the Constitution INCORPORATES elements of the common law by design. And the Constitution would abrogate elements of common law only if it did so deliberately. In the case of judicial removal, it very specifically adopts the elements relating to judicial removal. While the Constitution can be said to “outrank” common law, that would only matter if the Constitution and the common law conflicted and in this case, they do not conflict but instead work together.

To deal with the second point by the first poster, in the case of Article III Judges, removal via impeachment is an ALTERNATIVE form of removal, in addition to removal for breach of good behavior. The existence of impeachment does not prohibit other forms of removal. For example, during the existence of the Board of General Appraisers (later the United States Custom Court) the President was authorized to remove Appraisers (later Judges) for cause and in three cases actually did so. After that court became Article III, he could no longer do so in that manner.

Now lets refer to 1 Stat. 118, the Crimes Act of 1790, passed by the First Congress, specifically the last provision of Section 21 of the Act.

bribe as aforesaid, and the judge or judges who shall in any wise accept or receive the same, on conviction thereof shall be fined and imprisoned at the discretion of the court; and shall forever be disqualified to hold any office of honour, trust or profit under the United States.

Many of the First Congress were members of the Constitutional Convention and were well aware that Judges could be removed for breaches of good behavior. This provision of the Crimes Act clearly indicates that mere conviction in court was all that was necessary for disqualification from office and that impeachment and conviction were not necessary.

So clearly, for Article III Judges serving under good behavior, impeachment and conviction is an alternative method of removal, NOT the only method of removal.

This short article in the Yale Law Journal clearly points out the background of the good behavior clause and shows beyond a doubt that Judges can be removed for violations of good behavior without having to resort to impeachment and conviction.

Good luck.

Judges and Judicial Administration – Journalist’s Guide | United States Courts.

And here I thought Stretch Armstrong was a defunct toy.

Interesting theory. Nicely layed.

Just a small note.

Amendment VII

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”

Our Supreme Court is required to follow “the rules of the common law”, and one of the most fundamental rules of the common law is to carry out the legislative intent of our Constitution’s provisions.


Here I thought common law was when she left her toothbrush at your house.

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And why would the Constitution leave out something as critical as the method for getting rid of a
Supreme Court judge, when they had gone to the trouble of listing one method, impeachment, already?

Can you list one Article III judge who has ever been removed from office by your suggested method?
…or any method other than as prescribed in the Constitution?

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I can’t but see:

Impeachment is the prescribed, and constitutional method. Our founders did not leave out something as critical as getting rid of a federal Judge, which you correctly imply.

Safiel, would have the judges in charge of judging their own actions rather than Congress, as our Founders intended. Another suggestion to undue the miracle our founders created. :roll_eyes:

P.S. Here is short and informative piece on “The Impeachment of Judge John Pickering”

Not in effect until you use it twice.

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First of all, it would NOT REPLACE impeachment and conviction. That would continue to exist.

It would be SUPLEMENTAL to impeachment and conviction.

And the Founders INTENDED for the method to exist, as they use the terminology, good behavior. Not the same as if they had simply used life tenure. Good behavior has an unmistakable meaning. The meaning is they can be removed by judicial mechanism as well as impeachment and conviction.

Sounds like nothing more than attempting to create an un-enumerated way to change the checks and balances system.


Only if you don’t understand the history of the common law and the VERY plain language of the Constitution.