Should Chief Justice John Roberts Be Impeached?

According to Rep. Peter DeFazio (D., Ore.), he should be:

I mean, the Supreme Court has done a tremendous disservice to the United States of America. They have done more to undermine our democracy with their Citizens United decision than all of the Republican operatives in the world in this campaign. They’ve opened the floodgates, and personally, I’m investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn’t be a judicial activist, and he wouldn’t overturn precedents.

Wonders never cease. I am quite aware of the enormous controversy over Citizens United, and am happy to report that if Justice Roberts should lose his position on the bench through impeachment, then I should be at risk for my own teaching position, because I have already written in defense of the majority in Citizens United.

In every way, Representative Peter DeFazio looks like a crank. He falls over a constitutional cliff. But as cranks often rule the media, something should be said about his astonishing argument. So let me mention two key points. One concerns the role of judges as umpires. The second concerns Citizens United itself.

First, there are serious complications with Justice Roberts’ stated view that judges are like umpires who call balls and strikes, but who don’t make up the rules. The key point here is that judges are not just umpires, but they have all sorts of other functions as well. There are some questions that admit to the precise definition of a ball and a strike, and where the rule has that feature, no one wants judges to call cases contrary to the clear logic of a statute.

In the nature of things, alas, much of law does not involve these boundary-type questions, but a serious and sustained judgment about the soundness of certain approaches relative to others. Lawyers have a love/hate relationship with so-called balancing tests.

They love to denounce them on Monday only to use them on Tuesday. But it is a fair question to ask how one can avoid balancing if the choice is between allowing the freedom to speak about public affairs on the one side or providing state secrets to our enemies on the other. And so too with corporate speech, the hard question is whether there is any evidence of serious political abuse that justifies stopping someone from broadcasting a political attack video unless they run some hoops set up by some bipartisan (a deeply suspicious moniker) Campaign Reform Act. But as far as I can see, you can’t impeach Justice Roberts for announcing in advance an approach to judicial interpretation that no human being can follow.

Second, on Citizens United, the decision is in fact correct. There are all sorts of good reasons why corporations do not want to engage in electioneering before an election. They have to face the wrath of their customers and their shareholders if they take positions that seem unrelated to the core mission of the business. No actions need be taken against them to feel the heat. The loss of good will can easily translate into a decline in stock prices that are large enough to matter.

Some evidence of this point comes from asking who filed in support of Citizens United. Answer: it was not the corporations, any of them. Rather it was the Chamber of Commerce and the labor unions, who really are in this business big time. And well they should be given the huge amount of discretion that is lodged in political figures. The one uneasy position here is whether they need to disclose their donor base. In principle, we have a long position of anonymous speech so no one quite knows the right answer. The Supreme Court for the moment has no categorical ban on disclosure legislation, so the issue is still alive.

At this point, therefore, the best thing to do with Representative DeFazio is to ignore him. After all, there is no grounds to impeach him from public office for the silly statements that he makes. Stupidity does not count as a high crime or misdemeanor.

  1. Kenneth

    Slightly off topic, but this is just another of many examples of how new media has changed politics. In the days before the Web, DeFazio wouldn’t have gotten air time to say this and if he’d said it to a print reporter, they’d have spiked it. But Internet opinion outlets like HuffPo are so content-hungry that even a crank Congressman from the wilds of Oregon merits attention.

    Much of the insanity we’ve witnessed from Democrat politicians over the past few years – Phil Hare’s “I don’t worry about the Constitution”; Pete Stark’s raving attacks on his constituents; Bob Etheridge’s assault on a college student, and on ad nauseum – would never have come to light in the days where information was tightly controlled and sanitized by media cronies on the Left.

    The Internet shows us the true face of angry liberalism.

    And it ain’t pretty.

  2. River

    Democrats rigged campaign spending laws with McCain-Feingold, and poor dumb John McCain stuck to his pledge and its spending limit in 2008.

    Obama first pledged to abide by that limit, and then chucked his promise and outspent Mccain at least two – possibly three – to one. And he accepted foreign credit cards that couldn’t be traced. The vast gulf between what the Democrats spent in the last election, and what McCain spent, is a good measure of their Delusional Cognitive Disconnect

    Now the playing field is relatively level and the Democrats know the shell game is over. It’s driving them bonkers because they know they can never win the battle of ideas and principles, and must rely on bribed unions and public sector parasites.

    The ultimate question is this: Are campaign donations a form of free speech or not?

  3. Lo Fon

    This is rich, a liberal complaining about a justice not calling ‘em the way he wants. Can we get a retroactive do-over on Kennedy, O’Connor, Souter…

    Richard Epstein: In the nature of things, alas, much of law does not involve these boundary-type questions, but a serious and sustained judgment about the soundness of certain approaches relative to others.

    I always thought that the life of law has not been logic; it has been experience. The experience of searching the penumbras and emanations of various constitutional amendments – the 14th mainly – to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life. Umm, on second thought, maybe I’ll settle for the balls and strikes.

    I’m always waiting for the next hideous monster to jump out of the Pandora’s box that is the 14th amendment. From contracting rights to a vibrant alternative lifestyle, the 14th amendment will serve nicely, thank you.

  4. Good Berean

    We just had a good discussion here on Ricochet about repealing the 17th ammendment. What about the 14th?

  5. John Yoo
    C

    DeFazio’s proposal reeks of desperation, either for media attention or to rally the base before an expected electoral tidal wave. It cannot be serious, though it hearkens back to the very foundations of his party. Democrats should have learned better by now. When the Jeffersonian Democrats swept into power in the “Revolution of 1800,” the only bastion of strength for the Federalists was the judiciary. Jefferson did not want opposition from any quarter.

    They have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the treasury, and from that batter all the works of republicanism are to be beaten down and erased.

    So the Democrats launched an assault on the judiciary that went beyond public criticism of court decisions or even President Obama’s attack on the Supreme Court’s Citizens United decision during the State of the Union address. They eliminated scores of judgeships and then impeached and removed a Federalist lower court judge. They impeached but failed to remove Justice Samuel Chase because of disagreement with his legal views; if he had been successfully convicted, Jeffersonians allegedly had Chief Justice John Marshall next in their sights. But because of the failure to convict Chase, an unbroken tradition began not to use impeachment because of disagreement with a judge’s official views — this has been one of the important contributors to the stability of our political system.

  6. John Yoo
    C

    Impeachment, of course, remains available for judges who commit crimes. For advice on the impeachment process, Congressmen DeFazio might draw on the experience of Alcee Hastings, a fellow Democrat, who was a federal judge impeached in 1989 for accepting bribes and committing perjury. Hastings decided to look for work, so naturally he got elected to Congress. He is now a colleague of DeFazio’s.

  7. Kennedy Smith

    Professor Yoo, is it only for those who commit actual statutory crimes, or is it essentially a political process like other impeachments? In other words, the question may not be if he should be impeached, but if he can be impeached.

    Obviously, the Dems won’t have sufficient muscle to procure such an attainder, even if they marched in lockstep and chose this as their issue.

    However, even if they did have the numbers, I would argue that impeachment has to reach a higher political threshhold. Much like discarding the filibuster, it’s hard to get a majority to impeach someone without criminal activity, because the wheel of fortune always turns.

  8. flownover

    After consultiing WIkipedia, to see that DeFazio’s great uncle never said Republican without saying “bastud” , one can recognize the sensitive nature of his intellect.

    What a guy ! Democrats are projecting to an incredible extent on campaign finance.

    “I’m George Soros and I approved this message.”

  9. Lo Fon
    Good Berean: We just had a good discussion here on Ricochet about repealing the 17th ammendment. What about the 14th? · Oct 25 at 11:36am

    When talking about balls and strikes, I think Roberts was referring to (and what I’m alluding to above) is making up law whole cloth from nothing that appears in the text of a statute (I think lawyers refer to this as a “creative argument”). Thus Roberts says, “Umpires don’t make the rules.” The 14th amendment is not the problem, the problem is judicial activism. If you strike down the 14th amendment Justices will find another Constitutional cookie jar from which to legislate.

  10. flownover
    Kenneth: information was tightly controlled and sanitized by media cronies on the Left.

    The Internet shows us the true face of angry liberalism.

    And it ain’t pretty. · Oct 25 at 10:03am

    You better go over to rcp and check this out, heck with the angry-how about the ease with which this guy breaks the law and on tv ?

    http://www.realclearpolitics.com/video/2010/10/25/pa_dem_we_still_have_the_street_money_to_pay_for_voters.html

  11. River
    John Yoo: . ……Democrats should have learned better by now. When the Jeffersonian Democrats swept into power in the “Revolution of 1800,” the only bastion of strength for the Federalists was the judiciary. Jefferson did not want opposition from any quarter.

    They have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the treasury, and from that batter all the works of republicanism are to be beaten down and erased.

    So the Democrats launched an assault on the judiciary that went beyond public criticism of court decisions or even President Obama’s attack on the Supreme Court’s Citizens United decision during the State of the Union address. They eliminated scores of judgeships and then impeached and removed a Federalist lower court judge. They impeached but failed to remove Justice Samuel Chase because of disagreement with his legal views; if he had been successfully convicted, Jeffersonians allegedly had Chief Justice John Marshall next in their sights.

    Bravo, John, for pointing out the Jeffersonian roots of modern ‘progressivism’. He was a hero of mine for many years until I discovered his appealing record of hypocrisy.

  12. Underground Conservative

    Ugh, Peter DeFazio, from my home state. He is just one of the several cranks we have here. This state is so liberal, the reps and senators barely have to run a campaign anymore. He actually got a quote out there, though. David Wu, “my” rep, had been in Congress for 12 years now and I don’t think anyone has detected an accomplishment from him ever… but he’ll win again without a problem (he’s up 13 points now) to a really good Republican. Sigh…

  13. Matthew Gilley
    River

    John Yoo: . ……Democrats should have learned better by now. When the Jeffersonian Democrats swept into power in the “Revolution of 1800,” the only bastion of strength for the Federalists was the judiciary. Jefferson did not want opposition from any quarter. …

    Bravo, John, for pointing out the Jeffersonian roots of modern ‘progressivism’. He was a hero of mine for many years until I discovered his appealing record of hypocrisy. · Oct 26 at 3:32am

    Let’s not forget Jackson’s crude extension of Jefferson’s war with the judiciary.

  14. Ronaldus Maximus

    As one of DeFazio’s colleagues once said, “Bring it on!” Such a capricious move would make the Dems look even more radical.

  15. outstripp
    Lo Fon…The 14th amendment is not the problem, the problem is judicial activism. …· Oct 25 at 1:58pm

    Call it what it is: Judicial Imperialism. Calling it activism makes it sound reasonable.

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