Chief Justice John Roberts took the unusual step this week of issuing a statement rebuking the Trump Administration for statements saying that judges who rule against him should be impeached (or, in his inimitably mature and Presidential style, “IMPEACHED!!!”). Roberts replied that “[f]or more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
But this is not really correct. It’s true, of course, that the normal appellate process is the first step if you believe a trial judge has reached an incorrect conclusion. But it does not logically follow from that that impeachment is not an appropriate response to disagreement with a judge. On the contrary, a judge reaching legally incorrect decisions is a legitimate ground for impeachment of any judge.
Certainly nothing in the Constitution places incorrect rulings outside the category of circumstances that can warrant impeachment. On the contrary, its wording suggests otherwise. It says judges hold their offices “during good behavior,” and it is obvious that a judicial decision that is particularly bad, or repeated decisions that are bad enough, constitute bad judicial behavior. It seems obvious that Chief Justice Taney’s decision in Dred Scott would have warranted impeachment (but for the fact that Congress was then too beholden to the Slave Power). And it is easy to imagine worse examples. Suppose a judge issued an order declaring Jews to be traitors, or declaring that the state of Maine belongs to Canada. Would he not impeachable?
It is no answer to say that these are examples of delusion. The difference between “delusion” and “legally incorrect decisions” is only a matter of degree. Is delusion “bad behavior”? Yes—because it is an abuse of trust for a person to remain in office when he or she is incompetent, and delusion is a species of incompetence. But legally incorrect decisions are, in principle, a form of incompetence, too.
What if a judge just never showed up for work? Moved to Bermuda or something? But legally incorrect rulings are not, in principle, different from a judge simply not showing up for work. In fact, legally incorrect rulings are far worse than a judge not showing up, since they set bad precedent, inflict injustices, and at a minimum, take time and money to obtain an appellate reversal.
What about Originalism? Justice Roberts’ reference to “two centuries” during which it has been “established” that impeachment is an improper step is a reference to the cases of John Pickering and Salmon Chase, both targeted for impeachment by the Republicans in the Jefferson Administration. Congress removed Pickering—who was literally insane—but not Chase. What did this “establish”? To the Originalist, the answer must be: absolutely nothing. Senators vote for things for various reasons, and it establishes no legal precedent regarding constitutional meaning. Even if you’re not an Originalist, this establishes nothing. The removal of Pickering was along strict party lines—the Federalists all opposed removal, despite his literal incapacity—which proves that the Senate’s decision in these two cases was partisan, not based on some deep insight into the proper grounds for impeachment and removal.
In fact, we know what the Originalist answer is.
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