I Think He’s Forgotten Something

by Dave Schuler on April 4, 2012

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:

  1. Two-thirds of both houses of Congress can propose amendments.
  2. 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?

{ 6 comments… read them below or add one }

PD Shaw April 4, 2012 at 4:22 pm

The more legitimate way of approaching such chest-thumping is to limit judicial review beforehand. That way we are not suberting rule of law issues by “punishing” undesirable outcomes, but deciding in advance that there are types of cases an unelected judiciary is not fit to review.

Only two problems with this. First, Bourmedience v. Bush appears to have subverted Congress’ Constitutional authority to do so. Mr. Dow probably knows this and has written at length about it several years ago. Second, this would be political poison for a legislator to vote for something like that. Where were we again? Oh yes, please continue chest thumping Mr. DOw.

Dave Schuler April 4, 2012 at 4:24 pm

Yeah, just a few minutes ago in the comments of another post I mentioned the Congress’s power to limit the appellate jurisdiction of the Supreme Court. For some reason or another that power’s never been used.

Drew April 4, 2012 at 5:51 pm

I don’t know anything about B v B. But don’t you think its simpler to just sit back for a second and say if it ain’t broke don’t fix it? Yes, there are various rulings that the parties don’t like. Roe v Wade has been the white whale for the right. Perhaps this one becomes the white whale for the left. But from where I stand, its worked pretty well for a long time.

I’d go for term limits on Congress and one 6 yr deal for the presidency long before I’d go for term limits on the judiciary. The phrase “elections matter” has validity. Yes, things can sway left or right on the court. But I think for the most part these people take their responsibility very seriously. (Although I do think it odd that Kagan did not recuse herself in the case at hand.) I’m not a court historian, but rogue or incompetant judges don’t seem to have been a problem during my lifetime. I might chafe at some decisions, but so far they haven’t made me King, so I have to live with it.

Although……King Drew. Has a nice ring to it…..

steve April 4, 2012 at 7:20 pm

If you read the history of the Supreme Court, you will find out that several judges have held on way past their time. There is also this trend of picking ever younger judges. people with little experience of life or the law. Set 10 year term limits for SCOTUS justices. You will get better candidates. Otherwise, we could be looking at law school nominees.

(I trump your King Drew with God-Emperor Steve. Never think small.)

Steve

Drew April 4, 2012 at 7:49 pm

All Hail, God-Emperor Steve!

Steve Verdon April 5, 2012 at 10:43 am

TL;DR Dow is a dope.

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