Impeaching Chief Justice Roberts for "Judicial Activism"

The Huffington Post's Amanda Terkel reports that Rep. Peter DeFazio (D-Ore.) is so upset about the Supreme Court's recent free speech ruling in Citizens United v. F.E.C. that he is "investigating" whether or not to impeach Chief Justice John Roberts:

"I mean, the Supreme Court has done a tremendous disservice to the United States of America," Rep. Peter DeFazio (D-Ore.) told The Huffington Post on Tuesday. "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."

It's true that then-nominee Roberts described himself as a precedent-respecting advocate of "judicial modesty," a characterization that doesn't exactly match up with Roberts' precedent-shattering vote in Citizens United. The fact is that Roberts is trying to have it both ways, employing the usual conservative rhetoric in praise of judicial restraint while practicing an aggressive and highly selective form of judicial review. Still, as problematic as Roberts' approach may be, it's not the same as lying under oath. Indeed, as the liberal legal scholar Geoffrey R. Stone—who is no fan of Citizens United—told Terkel, "This is neither well-advised nor plausible…nothing in Roberts' testimony along these lines can fairly be characterized as perjury."

If he's still looking for a case of dubious testimony, DeFazio should try Sonia Sotomayor's 2009 confirmation hearings. On the topic of gun rights and the Constitution, then-nominee Sotomayor told the Senate, "I understand the individual right fully that the Supreme Court recognized in [District of Columbia v.] Heller." She later described Heller as "settled law." Yet when the Second Amendment came before her in the case of McDonald v. Chicago, Sotomayor joined the dissent written by Justice Stephen Breyer which explicitly rejected the Court's precedent in Heller. As Breyer, Sotomayor, and Justice Ruth Bader Ginsburg asserted in McDonald, "the Framers did not write the Second Amendment in order to protect a private right of armed self defense." That's a fairly significant contradiction of Sotomayor's sworn testimony, though I'm guessing DeFazio won't trouble himself "investigating" it.