Republicans May Regret Undermining Judicial Independence

Threats to impeach federal judges who rule against the government are a naked attack on their constitutionally crucial function.

Under the U.S. Constitution, federal judges "hold their offices during good behaviour" and receive salaries that "shall not be diminished during their continuance in office." Like other "civil officers of the United States," they can be removed from office by Congress only if they are impeached by the House and convicted by the Senate of "treason, bribery, or other high crimes and misdemeanors."

Those provisions aim to protect judicial independence, which is essential to the rule of law. But Elon Musk, the billionaire entrepreneur who unofficially runs the federal cost-cutting initiative known as the Department of Government Efficiency (DOGE), seems to think "good behaviour" precludes any ruling that obstructs his efforts, which he views as an impeachable offense.

That attitude jibes with President Donald Trump's long-standing resentment of judicial interference with his agenda, which he reflexively portrays as politically motivated. It is especially troubling in light of Vice President J.D. Vance's suggestion that the Trump administration would be justified in defying court orders that arguably impinge on "the executive's legitimate power"—a position that is blatantly at odds with the judicial branch's vital role in making sure that government officials respect statutory and constitutional limits on their authority.

"We are witnessing an attempted coup of American democracy by radical left activists posing as judges!" Musk complained on X, his social media platform, last month. "There need to be some repercussions above ZERO for judges who make truly terrible decisions," he added later that day. "Judge not, lest ye be judged."

In other posts, Musk spelled out what he had in mind. "When judges egregiously undermine the democratic will of the people, they must be fired or democracy dies!" he declared on February 25, referring to a temporary restraining order that U.S. District Judge Amir Ali had issued against Trump's 90-day freeze on foreign aid.

As Musk sees it, "the only way to restore rule of the people in America is to impeach judges." Congress "must Impeach the CORRUPT judges," he says, because "the people have spoken." When judges "repeatedly abuse their authority to obstruct the will of the people via their elected representatives," he thinks, they "should be impeached."

Musk seems oblivious to the fact that judges are supposed to "obstruct the will of the people" when it is inconsistent with the law. In the foreign aid case, for example, aid recipients argued that Trump had violated the separation of powers by unilaterally deciding not to spend money that Congress had appropriated.

In granting a preliminary injunction on Monday, Ali concluded that the plaintiffs were likely to prevail on that claim. The appropriate response to that "terrible decision" is an appeal arguing that Ali got it wrong, a question that the Supreme Court may ultimately resolve.

The response that Musk prefers—firing any judge who dares to disagree with him—is a naked attempt to intimidate the judicial branch. Musk applauded when Rep. Andy Ogles (R–Tenn.) announced that he was drafting articles of impeachment against Ali, and he hopes that threat will deter other judges from ruling against the Trump administration.

For good reason, that strategy has provoked objections even from reliable Trump allies. "You can't always get what you want," said Sen. Lindsey Graham (R–S.C.). "I'm not a big fan of impeaching somebody because you don't like their decision. They have to actually do something unethical."

Since Republicans hold thin majorities in the House and Senate, such vindictive impeachments are unlikely to get far. But as Chief Justice John Roberts warned in December, threatening judges with impeachment based on unpopular decisions is one facet of a broader attempt to delegitimize judicial review.

Although Republicans routinely rely on that principle to challenge the policies of Democratic presidents, they may view it as dispensable now that their team is in charge. But since "the democratic will of the people" can change from one election to the next, they may have cause to regret that calculation.

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