The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chief Justice Roberts Speaks
Today, Chief Justice Roberts issued a statement:
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.
This statement follows on the heels of the Judicial Conference meeting last week, in which Judges Sutton and Sullivan raised similar alarms about impeachment:
"Impeachment shouldn't be a short circuiting of that process," Sullivan said. "And so it is concerning if impeachment is used in a way that is designed to do just that."
U.S. Circuit Judge Jeffrey Sutton, an appointee of Republican President George W. Bush on the Cincinnati-based 6th U.S. Circuit Court of Appeals who chairs the Judicial Conference's executive committee, echoed those comments.
"One thing worth keeping in mind is if we dilute the standards for impeachment, that's not just a problem for judges," Sutton said. "That's a problem for all three branches of government."
I think we need a sense of perspective.
Last year Representative AOC and other members of Congress introduced articles of impeachment against Justices Thomas and Alito. As best as I can recall, Roberts said nothing about this. Likewise, the Federal Judges Association and the American Bar Association said not a word about the never-ending crusade against two members of the Supreme Court. These attacks were never about disclosures. These critics were trying to delegitimize the Court. Yet, everyone was silent.
Likewise, in 2023, Senator Ron Wyden told President Biden to "ignore" any ruling from Judge Matt Kacsmaryk concerning mifepristone. We aren't talking about turning planes around over international waters. This would be a ruling that could be timely appealed in the normal course. Yet Roberts did not say a word about this in his end-of-year address or anywhere else. The FJA, the ABA, and all the usual suspects were silent. To the contrary, the Judicial Conference acceded to the criticism of Judge Kacsmaryk by trying to force down a rule to take cases away from him! I realize that Chief Justice Roberts is hitting the panic button, but his protest has started a bit too late.
Taking a step back, I think the standard for the impeachment process has indeed been diluted. At least with regard to the presidency, the first Trump Administration demonstrated that nebulous offenses that are untethered to any actual crime were impeachable offenses. Remember "abuse of power"?
I think the lesson of the Samuel Chase impeachment is the right one. But I'm also someone who has carefully studied the two-century history of the Court. What do you do with a President who was subject to two impeachments, where countless norms were blown past to resist him? During the first trial, Roberts admonished members of Congress to not use harsh language! And Roberts couldn't even be bothered to preside over the second trial.
The Constitutional Crisis is a coin with two sides. Trump causes judges to overact, and judges cause Trump to overreact. Any resolution must be bilateral, not unilateral. Roberts could de-escalate the situation by promptly reversing some of these out-of-control lower court rulings. But instead, he would rather sit on his hands and pontificate. I've long said that the Chief Justice is living in a different reality than the rest of us. This episode proves it. There are three co-equal branches of government; the judiciary is not supreme.
Chief Justice Marshall had the good sense to avoid a confrontation with Presidents Jefferson and Jackson. But Roberts apparently thinks this sort of statement will make everything better. But every time Roberts puts pen to paper to avoid some perceived catastrophe, he usually invites an even greater one down the road. This is a lesson he has not learned during his tenure.
Update: A few people wrote to distinguish the AOC Articles of Impeachment from the more recent articles. They claimed that AOC and her colleagues charged Thomas and Alito with failing to disclose certain gifts, not recusing on certain cases, and violating other ethical standards.
Does anyone think that AOC and her colleagues would have filed these articles if Justices Thomas and Alito were liberals? No, they would not. How do I know that? Because Justice Ginsburg took trips and failed to disclose that hospitality. Justice Ginsburg wore a dissent collar on the bench to protest Trump's election. She made comments to the press about Trump, and then refused to recuse. Where was the outrage? Silence. More recently, Justice Sotomayor accidentally did not recuse from a case that involved her publisher. Justice Jackson also failed to properly file her disclosures. The world turns.
Is there a difference between impeaching a judge for his judgment in a particular case, and for his judgment about how to follow a recusal statute? I don't see much difference. In both cases, judges are exercising their discretion. If there is an actual crime, such as bribery, let an indictment be brought. But no one has even suggested this offense was committed.
I see the gravamen of the AOC resolution as a pretext. To the extent that AOC and others are citing alleged violations of ethical rules, they are in fact objecting to Thomas and Alito's substantive rulings. Any prosecutor, or indicter, can gin up charges to justify punishment. But the motivation to bring those charges is very different.
Trump is unique in that he says exactly what he is thinking. Other politicians engage in similar acts through locutions and workarounds. But Trump tells you exactly what he is thinking.
