territorial governor had purported to remove him and appoint another to his seat. Relying on § 262 of the Judicial Code of 1911, a predecessor of the All Writs Act, the court ruled that it had authority to issue the writ "in aid of" its jurisdiction; it observed that the absence of a lawfully appointed judge of the District Court affected the rights of litigants in cases reviewable in the Court of Appeals, and that "the right of the public to a properly constituted trial court from which appeals can validly lie could not be asserted or brought about in proceedings on appeal or writ of error." In those circumstances, the court deemed it "essential to the appellate jurisdiction of this court that orderly proceedings in the District Court of the Virgin Islands be restored." Ibid.

A dissenter in Malmin disagreed with the majority's conclusion that the defect could not be rectified on appeal, and urged that mandamus should not issue because it could not bind the succeeding appointee, who was not a party. In the case before us, as noted above, the ordinary appeals are not adequate to protect Judge Chandler's interest; and there is no problem of missing parties, since it is the judge himself who is complaining of illegal interference with the exercise of his office, and that complaint can be remedied fully by the issuance of a writ against respondent Judicial Council.

For these reasons I would conclude that the actions challenged by Judge Chandler sufficiently affect matters within this Court's appellate jurisdiction to bring his application for an extraordinary writ within our authority under § 1651 (a), and that his charges, if sustained, would present an appropriate occasion for the issuance of such a writ.15

15 In many of the early mandamus cases in this Court, such as Ex parte Peru, supra, the Court based its action on both § 234 and 262 of the Judiciary Code of 1911, the predecessors of

III

In the present posture of this case Judge Chandler, in my opinion, is not entitled to the relief he seeks. The Order of December 13, 1965, which prompted his recourse to this Court, has been superseded by the Order

$1651 (a). The Court usually did not specify whether it relied upon 234 or 262, apparently considering that they furnished overlapping authority. Section 234, which derived from § 13 of the Judiciary Act of 1789, conferred upon this Court, and this Court. only, "the power to issue . . . writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States Section 262 provided that "[t]he Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.” The former provision was construed as conferring upon this Court "a general supervisory power over the inferior courts, so far as this power was exercisable through a writ of mandamus in its historic function," enabling the Court "to exercise the essentially appellate function of reviewing and revising a judicial proceeding in a lower court by appropriate use of the common-law writ of mandamus, whether or not it had been given by Congress some other statutory appellate jurisdiction, or potential appellate jurisdiction, by way of an appeal or writ of error or otherwise." In re Josephson, 218 F. 2d 174, 177-178 (C. A. 1st Cir. 1954). See, e. g., Virginia v. Rives, 100 U. S. 313, 323-324 (1879); Er parte Bradley, 74 U. S. 364, 375–377 (1868); Ex parte Crane, 30 U. S. 190 (1831). In contrast, the power granted by § 262 was not an independent appellate power but merely an auxiliary power exercisable when appellate jurisdiction was granted by some other provision of law.

These two provisions were consolidated into § 1651 (a) as part of the 1948 revision of the Judicial Code. The brief Reviser's Note explained that the "revised section extends the power to issue writs in aid of jurisdiction, to all courts established by Act of Congress, thus making explicit the right to exercise powers implied from the creation of such courts." The "special provisions" of § 234 relating to the Supreme Court "were omitted as unnecessary in view of the revised section." H. R. Rep. No. 308, 80th Cong., 1st Sess. A144

of February 4, 1966, which I am satisfied is entirely within the authority of the Council. I am wholly unable to regard the latter order either as a "removal" of Judge Chandler from judicial office, or as anything other than an effort to move along judicial traffic in the District Court. In this state of affairs, I can find no room for the constitutional argument so vigorously made by my Brothers BLACK and DOUGLAS.

A

Petitioner strenuously attacks the substance of the December 13 Order, which he claims effectively re

A145 (1947). Because the language of § 1651 (a) more closely resembles that of § 262, it has been speculated that Congress by enacting the revision may have withdrawn from this Court its special appellate power under § 234 to supervise proceedings in the lower federal courts without regard to whether any other statute gives the Court jurisdiction to review those proceedings. See LaBuy v. Howes Leather Co., 352 U. S. 249, 260 (1957) (BRENNAN, J., dissenting); In re Josephson, supra.

The United States as amicus urges the Court to rule that no such change was effected by the 1948 revision, arguing correctly that § 234 would clearly encompass the type of review Judge Chandler seeks. The United States points out, in support of such a ruling, that the Reviser's Note stated that § 1651 (a) "consolidates" the earlier provisions, "with necessary changes in phraseology"; this gave no indication that a significant change in the law was intended, and one should not lightly be inferred. I note that the Court in Ex parte Peru, referring to both § 234 and § 262, stated that "[u]nder the statutory provisions, the jurisdiction of this Court to issue common-law writs in aid of its appellate jurisdiction has been consistently sustained." 319 U. S., at 582-583. Its use of the expression "in aid of its appellate jurisdiction" to characterize both statutes suggests that the similar phrase in § 1651 (a) may also encompass the powers exercised by this Court under § 234. However, there is no need to decide this question here in light of the fact that the reviewability in this Court of the many cases whose allocation is determined by the Judicial Council's orders brings Judge Chandler's petition within the Court's powers as they existed under § 262.

moved him from office, as well as the procedures under which the order was issued. His substantive argument is that $332, on which the Council relied, does not authorize the placing of restrictions upon the functioning of a district judge, even temporarily, and that if it does the statute is unconstitutional because the constitutional provisions 16 vesting in Congress authority to impeach federal officers, including judges, establish the exclusive means of inquiry into the fitness of a federal judge to perform his duties. In response the United States as amicus argues that the impeachment provisions should not be read as precluding legislation that would authorize supervision of federal judges by "judicial trial of the fulfillment of the condition of federal judicial tenure under Article III-that the judge maintain his 'good behavior.'" This question has been the subject of scholarly debate, and is presently before the Senate as it considers the proposed Judicial Reform Act. See Hearings on S. 1506 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 91st Cong., 1st Sess. (1969). Petitioner's procedural objections to the December 13 Order relate to its issuance ex parte, without notice or hearing circumstances that raise serious questions under the Due Process Clause of the Fifth Amendment.

I believe the respondent and the United States are correct in contending that these issues need not be resolved on this occasion. As explained in Part I above, the December 13 Order is no longer before us. Therefore, the only question still requiring decision is the validity of the outstanding February 4 Order under the enabling statutes.

B

The Council rested the February 4 Order on its authority under both § 137 and § 332. Considering first the

16 See U. S. Const., Art. I, §§ 2, 3; Art. II, § 4.

Council's more general grant of authority, § 332, I think this order was substantively within the powers conferred by that provision. The order was designed to deal with the situation in Judge Chandler's court by requiring him to dispose of his backlog before notifying the Council that he is willing and able to undertake new assignments. See Supplemental Memorandum for Respondent. That the Councils might issue orders of this type was clearly contemplated by the draftsmen of § 332, and such orders seem to have been a customary measure taken by the Councils under the section.

The legislative history of § 332, summarized in Part II above, makes clear that a Judicial Council's mandate to "make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit" was intended to encompass the making of orders that would direct a district judge to clear up his docket or would channel cases to other judges when a situation existed with respect to one judge that was inimical to the effective administration of justice. Cf. Vinson, The Business of Judicial Administration, 35 A. B. A. J. 893, 895 (1949).

The Judicial Conference of the United States made a study in 1961 of the role of the Judicial Councils, culminating in a report that was transmitted to Congress by Chief Justice Warren. That report, after thorough consideration of the legislative history of the 1939 Act, specifically listed as among the responsibilities of the Councils "having a judge who has an accumulation of submitted cases not take on any further trial work until such cases have been decided." H. R. Doc. No. 201, supra, at 10. This power has been exercised on other occasions by other Judicial Councils. See, e. g., Fish, supra, at 230; Lumbard, The Place of the Federal Judicial Councils in the Administration of the Courts, 47 A. B. A. J. 169, 170-171 (1961); Shafroth, Modern Developments in

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