The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chief Justice John Roberts Rightly Condemns Trump's Call to Impeach Judges who Rule Against Him
There is no justification for such impeachment efforts.
Earlier today, Supreme Court Chief Justice John Roberts issue a statement condemning President Trump's calls for impeachment of judges who rule against him:
For 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.
I have many differences with Roberts regarding various rulings he has made. But I agree completely on this issue.
I also agree with prominent conservative legal commentator Ed Whelan, of the Ethics and Public Policy Center:
1. I'd be open to impeaching judges for persistent bad-faith or wild rulings. Nothing remotely like that here. Indeed, from what I have seen, Judge Boasberg's critics have yet to make a clear and compelling case that his order was wrong.
2. Impeachment threats are at best performative nonsense. Even worse, they may provoke threats of violence against judges and family members.
Ed Whelan is far more conservative than me. We differ on many legal and policy issues, but agree here because it's a basic rule of our legal system that cuts across party and ideological lines (or should be).
Like Ed, I think Judge Boasberg's rulings in the Alien Enemies Act case are largely right. Regardless, neither they nor other recent rulings against Trump's policies come even remotely close to the kinds of abuses of power that might justify impeachment.
I would add that the passages in Chief Justice Roberts' year-end report about the danger of defiance of judicial orders now seem especially prescient and relevant, as the administration seems to be moving in that direction. I warned about that threat at the time the report came out.
Co-blogger Josh Blackman is critical of Roberts' statement for reasons that strike me as baseless "whataboutism." Yes, some Democrats have previously called for judicial impeachments without good reason. But the threat posed by such demands is obviously greater when it comes from the president of the United States, than from political activists or congressional backbenchers.
Josh's comparison to the two impeachments of Trump is even more off-base. Those impeachments were undertaken for compelling reasons. The first one arose because Trump usurped Congress's spending power, and also likely committed a crime in the process. The second was even more obviously defensible: Trump undertook a massive assault on our constitutional order by trying to use force and fraud to stay in power after losing a presidential election. And, yes, in that case, too, he committed crimes in the process, though impeachment does not in fact require a violation of criminal law.
There is no valid comparison between either of these impeachments and efforts to impeach judges merely for ruling against the administration in power. None.
