In his post urging the impeachment of any justice of the Supreme Court who would dare to overturn the Affordable Care Act:
We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.
I think that David Dow has forgotten something. Ignore the sloppy reasoning, the exaggerations, and the baseless accusations. He’s forgetting Article I, Section 2 of the Constitution:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
At last look the House of Representatives opposed the ACA more strongly than the country as a whole does (and those opposed to the ACA outnumber those supporting it in the country as a whole). How likely does Mr. Dow think it is that the House will impeach, say, Chief Justice Roberts for striking down the ACA?
As to amending the Constitution there are two mechanisms provided for doing that:
- Two-thirds of both houses of Congress can propose amendments.
- Two-thirds of the legislatures of the states can convene a constitutional conventions.
How likely is it that two-thirds of the members of the House will vote for judicial term limits? Or a larger number of justices (expressly for the purpose of packing the Court)? By my count well over half of the states have legislatures with Republican majorities. Do you think that two-thirds of the state legislatures can be dragooned into taking any steps that would make it more likely that the ACA would be upheld?