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The U.S. Supreme Court did not cover for Nixon nor Clinton. Will it for Trump?
I assume you’re referring to the upcoming decisions regarding his tax returns?The clear answer is “No”, they won’t: at this point, six different courts have ruled against Trump with respects to keeping his tax returns secret - this despite the fact that Congress have requested them, as has the SDNY (as part of investigations into fraud and campaign finance violations). Six different lower courts have ruled against Trump - the only way for the Supreme Court to now rule in his favour is to say that those six courts were wrong in their judgment.Can you imagine the impact such a thing would have on the judiciary?More to the point, the SCOTUS simply cannot uphold Trump’s desire to be held unaccountable for any of his actions - not only would it set a dangerous precedent, but it would infringe upon Congress’ right to oversight over the Executive Branch, and that would be very dangerous indeed.So…no, you can expect the Supreme Court to uphold the decisions of the lower courts, and for Congress to receive Trump’s tax returns in short order. I daresay we’ll learn the contents shortly thereafter and that will not be good news for him.
Should there be a disciplinary mechanism for Supreme Court Justices that addresses conduct short of impeachment?
“Should there be a disciplinary mechanism for Supreme Court Justices that addresses conduct short of impeachment?”Should there be one? That’s debatable, but I don’t think so. The more methods there are to affect a Supreme Court Justice, the more methods there will be to influence that Justice—and the whole point of an independent judiciary is that the Justices should be entirely unaccountable to the political branches.But could there be such a mechanism? Not without a constitutional amendment.The Judicial Branch (as principally embodied in the Supreme Court) is co-equal with the other two branches, not subordinate to either or both. Neither of the other two branches (or both together) has any authority to issue commands or disciplinary rulings to the Supreme Court.And even the Supreme Court itself has no authority to discipline one of its members in any way.Remember, any power not granted to the government in the Constitution is denied to the government. So, have a look: U.S. ConstitutionDo you see anything that grants anyone at all the power to impose their will on the Supreme Court, outside of impeachment? I can’t find anything.Congress can discipline all lower court judges, because Articles I & III grant Congress the power to create all the lower courts—they exist only by Congress’s say-so.But the Supreme Court is entirely independent of Congress—it exists without Congress’s permission, and if Congress gives the Court an order (even with the concurrence and signature of the President as well), the Court is free to tell Congress right where to shove it.
What was the reason that Jasti Chelameswar was denied to be the 45th Chief Justice of India despite being the senior-most judge of Supreme Court?
Unfortunately, what the Supreme Court preaches to others, it does not follow itself. I am referring to transparency and giving of reasons for various actions taken by the Supreme Court on its administrative side, especially, the decisions of the collegium. It is the collegium of the Supreme Court which selects and makes recommendations for appointment of judges for the high courts and the Supreme Court. There do not appear to be any objective yardsticks for selection of judges, and if there are any, they are not in the public domain.Let me illustrate by an example. Justice A.P. Shah was Chief Justice of Madras high court from 12 November 2005 and then he was transferred as Chief Justice of Delhi high court on 7 May 2008. He retired from that position in February 2010. He was not elevated to the Supreme Court, despite being known as one of the best judges, and at that time also being the senior most judge. This is what noted journalist Kuldip Nayar wrote on 21 February 2010 in his column “Across the Palk Straits” in the Sunday Times of Sri Lanka:“This is yet another supersession of judges, not in the technical sense but in all other respects. Justice A.P. Shah, who retired from the office of Chief Justice of the Delhi High Court a week ago, was one of the finest judges in the country. He was also the senior most.“Yet he was not elevated to the Supreme Court. The bias of Justice S.H. Kapadia, the Supreme Court judge, against Justice Shah blocked the appointment. Justice Kapadia is a member of the five-judge collegium which selects judges for the High Courts and the Supreme Court. I believe all other four judges were in favour of Justice Shah. But they were helpless because the convention is to have a unanimous choice.“However, this was not the reason for the supersession of Justice Shah. In his case, his courage to stand up was his undoing. He had dared to cross Justice Kapadia's path when the two were on the bench of the Bombay High Court some years back. The collegium meeting, where the name of Justice Shah was discussed, was reportedly a noisy sitting, four judges on one side and Justice Kapadia on the other. He is said to have closed the discussion with the remark that the elevation would be over his dead body.”So, you can see how the Collegium functions. In the most secretive manner. By consensus. This would generally imply compromises, accommodations, and give-and-take. You scratch my back and I scratch your back.Justice Chelmeswar has himself criticised the opaque functioning of the collegium on more than one occasion. He had even boycotted attending the meetings of collegium.So, merit of the persons being selected by collegium would generally be judged on subjective basis. Personal prejudices would play a substantial role, as above article by Kuldip Nayar clearly demonstrates.Another example. In 2013, the then chief justice of Gujarat high court, Bhaskar Bhattacharya, accused the then Chief Justice of India, Justice Altmas Kabir, of being biased against him and stopping his elevation to the Supreme Court as he had earlier opposed the elevation of Mr Kabir’s sister to HC judge in Calcutta when he was a judge in Calcutta high court [see here]. It is noteworthy that the sister of Chief Justice Kabir was elevated as a high court judge for a short tenure (when she was 59 years old) against the prevalent practices, and that too at a time when Justice Kabir was himself a member of the collegium, though it is reported that he did not participate in the collegium meeting (see here).There are more examples of this nature, but I don’t want to multiply such examples. You can get plenty of such examples if you conduct a Google search.In fact, recently, I have written in an answer on Quora as to how in a controversial manner, Justice KM Joseph has been recommended for his elevation as a Supreme Court judge even though he is 45th in the All India seniority of judges and at number 12 in the seniority list of Chief Justices of the High Court. Supersession of so many high court judges in one go is really a cause for concern for various reasons. Presently, this proposal is still under consideration of the Government of India.The point is – not all is well with the collegium decisions.And, it is the collegium that decides who would be elevated and who would not be; who would be elevated when; who would be senior, etc., etc.Let me now come to your specific question about Justice Chelameswar, the sitting Supreme Court judge, as to why he was not appointed as the 45th Chief Justice of India. I may point out that the 45th Chief Justice of India is Justice Dipak Misra, who is the present CJI (see list of all Chief Justices of India). So, your question is basically, why Justice Dipak Misra was made CJI and why not Justice Chelmeswar.Okay. Let me mention the basic facts, which are taken from the Supreme Court website (http://www.sci.gov.in/chief-justice-judges). Justice Dipak Misra was appointed as an Additional Judge of the Orissa High Court on 17th January, 1996. On the other hand, Justice Chelmeswar was appointed as Additional Judge of High Court of Andhra Pradesh on 23.06.1997. So, Justice Misra was senior to Justice Chelameswar in this regard.Secondly, Justice Misra became permanent Judge on 19th December, 1997. On the other hand, Justice Chelameswar became the permanent judge on 17th May 1999. So, in this regard also, Justice Misra is senior to Justice Chelameswar.Thirdly, the Supreme Court website mentions that Justice Misra assumed charge of the office of Chief Justice, Patna High Court on 23rd December, 2009 and charge of the office of the Chief Justice of Delhi High Court on 24th May, 2010. It appears that he was Chief Justice of Patna high court in the capacity of acting chief justice. On the other hand, Justice Chelameswar was elevated as Chief Justice of Gauhati High Court on 03.05.2007. So, in this regard, Justice Chelameswar is senior to Justice Misra. However, as I have mentioned above, the collegium actions being non-transparent and generally not reasoned (being by consensus), it is not known why Justice Chelameswar was elevated as Chief Justice of a high court much prior to Justice Misra, even though the latter was senior to him.Fourthly, Justice Dipak Misra and Justice Chelameswar, both were elevated as Supreme Court judges on the same day, namely, on 10th October 2011. Now, Justice Misra was sworn as judge of Supreme Court BEFORE Justice Chelameswar, though both took oath on the same day. As per the convention, the judge who is sworn earlier, become the senior. Generally, such seniority is decided by the collegium itself while recommending the names. The Government approves the names in accordance with the order of seniority recommended by the collegium (barring an exceptional situation when a specific person’s name is withheld by the Government for some time, such as for reconsideration by the collegium, while other names are approved for appointment).Therefore, it must have been on the basis of the collegium recommendation that Justice Misra became senior to Justice Chelameswar, even though both took oath on the same day. Again, due to non-transparent actions of the collegium, we do not know the reasons. I have heard some reasons for this in the corridors of the Supreme Court, but I would refrain from disclosing the same on a public forum like this in the absence of any evidence to prove the same. This is a sensitive issue and it is advisable that any unsubstantiated fact is not written in public domain. At least, not now, when both judges are still in position.Now, since Justice Dipak Misra was given seniority over Justice Chelameswar in appointment as judge of the Supreme Court, obviously he was rightly appointed as the 45th Chief Justice of India, while Justice Chelameswar was not so appointed.This is how the Supreme Court collegium functions in a non-transparent manner, without supporting its decisions by detailed reasons. At least they are not in public domain. However, I must hasten to add that for last about 6 months, the collegium has started uploading its decisions on the Supreme Court website; but, then, the decisions that are uploaded are very cryptic and leave out many details. So, generally, it is still not possible to know what were the exact reasons for a particular decision of the collegium.
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