Contempt: The Original Judicial Cheat Code

The judicial contempt power challenges the fundamental rights enshrined in America’s Constitution. Imagine spending eight years in federal prison with no right to a jury trial or a court appointed attorney. Your only reprieve is the discretion of the judge who is imprisoning you. Meaningful appeals and even habeas corpus actions are generally not available remedies. Instead, what was originally justified as an inherent power of the court, necessary to maintain order and decorum, is increasingly used for trivial offenses or to incarcerate individuals for far longer than their possible crimes would otherwise warrant. Despite widespread instances of abuse of the contempt power, there has been scant legal attention to, responsible management of, or corrective reform actions taken for contempt. Instead, abuse of the contempt power is justified in the dicta of cases that the public is entirely unaware of. This Article illuminates the constitutional challenges regarding the contempt power and provides recommendations for reforming the judiciary’s application of the power. It does so by analyzing the foundations of the contempt power, finding that our current interpretations take both the Constitution and case law out of context. It begins with an authoritative historical account of the contempt power, contextualizing its role as a hold-over power from English Courts and noting its tension with fundamental individual rights guaranteed by the U.S. Constitution. It argues that the way contempt is implemented today—particularly in cases of civil contempt, where contemnors can be imprisoned for years without the right to a jury trial, the right to appeal, or the writ of habeas corpus—stretches the idea of this inherent judicial power beyond the realm of constitutionality. This Article then presents several mechanisms for reforming the contempt power. These proposed mechanisms will facilitate the judiciary’s goal of maintaining order in the court and simultaneously ensure the people that the contempt power does not violate basic tenets of America’s Constitution.