A dangerous trend in American politics threatens the U.S. Constitution, the independent judiciary, and the rule of law. Democrats and Republicans want to impeach Supreme Court Justices.
State legislators impeached the entire West Virginia Supreme Court on August 15, 2015. The Republican House Delegates (State Legislature) removed all four sitting Supreme Court justices, Slate reported.
Critics accused the Grand Old Party (GOP) of trying to get rid of a Democratic Supreme Court before November’s election. Not coincidentally, Democrats have been doing well in recent polls in West Virginia.
The four impeached justices are apparently a bunch of corrupt political hacks. Yet critics have a superb point. Republicans are trying to pack the court in their favor.
Supreme Court Impeachment Threatens the Constitution and your Freedom
That is a frightening precedent that threatens basic principles of American government.
Principles threatened include the separation of powers of the three branches of government; judicial, executive, and legislative. Impeachment endangers the ideal of an independent judiciary that can strike down legislation. It also threatens the rule of law, by giving legislators the means to threaten jurists.
It menaces constitutional rights because legislators have the power to remove justices that defended them. History teaches us that constitutional rights are often politically unpopular.
Congress ignored President Franklin Delano Roosevelt’s (D-New York) blatant violation of the Constitutional rights of Japanese American citizens during World War II. The independent judiciary was the only limited check on FDR’s wartime excesses.
Democrats want to Impeach Justices Too
Americans need to fear Supreme Court impeachment because some Democrats like the idea too.
“We must impeach Trump’s SCOTUS (Supreme Court of the United States) pick Neil Gorsuch,” a leftwing website called Impeach for Peace demands. The blog contains a petition demanding Gorsuch’s impeachment.
“Instead, of being stuck with Neal Gorsuch in a stolen SCOTUS seat for possibly 30 or 40 years, if the Democrats regain control of the House and the Senate,” a post at Daily Kos proposed. “Why not impeach Gorsuch, convict him, and replace him with Merrick Garland?
Democrat leaders publicly oppose impeachment, but the idea is percolating among the rank and file. U.S Representative Keith Ellison (D-Minnesota) rejected Supreme Court impeachment in a Daily Wire interview. Unfortunately, Ellison; the deputy Democratic National Committee Chairman, is retiring from the House in 2019.
Supreme Court Impeachment is more likely than you think
Supreme Court impeachment is a greater danger than most Americans realize. Recent events in Washington will generate political pressure for SCOTUS removal.
President Donald J. Trump (R-New York) reportedly made a secret deal to ensure to ensure Justice Anthony Kennedy’s retirement and replacement. Kennedy agreed to retire this summer to open a window of opportunity for Republicans to replace him, Vanity Fair claimed.
Trump and Kennedy’s deal was a responsible action. We should commend the President and Kennedy for trying to provide America with a functioning Supreme Court.
Disturbingly, the Trump-Kennedy deal will provide leftists with a rationale for SCOTUS impeachment. The rationale is a Republican conspiracy to pack the courts.
Why Democrats will Demand SCOTUS Impeachment
The prospect of a conservative court capable of striking down their legislation frustrates Democrats. Recent SCOTUS decisions are stoking liberal fears of radical judicial activism.
Public-employees unions; a key Democratic constituency, took a serious hit in Janus v. American Federation State, County and Municipal Employees. The Supremes ruled government employees do not have to pay for collective bargaining, The New York Times reported. The ruling limits unions’ ability to make contracts, raise money, and strike.
Decisions like Janus will increase the pressure to reshuffle the Court in Democrats’ favor. Presidential impeachment would provide another powerful motive for SCOTUS removal.
Presidential Impeachment can lead to SCOTUS Removal
The Supreme Court has the power to overturn a Presidential impeachment, Harvard Law Professor Alan Dershowitz theorized in The Hill. Dershowitz argues the Chief Justice has the power to dismiss impeachment charges in his new book “The Case against Impeaching Trump.”
Congress would be under intense pressure to remove a Chief Justice that tried to block a presidential impeachment. A Supreme Court that followed Dershowitz’s suggestion would trigger a constitutional crisis.
Fortunately, Chief Justice John Roberts is a strong believer in judicial restraint. Therefore, it is unlikely he would follow Dershowitz’s destructive advice.
Dershowitz’s suggestions demonstrate how dangerous impeachment is. Presidential or Supreme Court impeachment is a Black Swan event that will have unforeseen consequences.
How Democrats can kill the Independent Judiciary
Disturbingly, Republican court-packing efforts are driving Democrats in directions that make future SCOTUS impeachment more likely.
Leftists are openly promoting a court-packing plan that is far more radical than anything Republicans have attempted. Political scientist Todd N. Tucker wants Democrats to add enough new justices to the Court to overcome any conservative majority.
Court packing by expanding the Supreme Court is not a new idea. President Ulysses S. Grant (R-Illinois) did it back in 1869. Grant added two new justices to the court specifically to overturn a ruling called Hepburn v. Griswold.
SCOTUS ruled that paper money was unconstitutional in Hepburn v. Griswold, one of the “Legal Tender Cases.” Hepburn v. Griswold threatened the government’s ability to print money and the economy.
Grant responded by nominating two additional Justices whom he thought would overrule Hepburn v. Griswold. Court packing worked; then SCOTUS majority found paper money constitutional in a case called Knox v. Lee.
Grant was able to pack the court because the Constitution sets no limit on the number of Supremes. Therefore, it would be possible to have 15 or even 21 members of SCOTUS.
Is Court Packing the Future?
The last Supreme Court packing effort by FDR in 1937 was a miserable failure. Republicans and Conservative Democrats united to kill that scheme. We might not be so lucky next time around.
Frighteningly, lefties are advancing several court-packing plans, The Vox reported. Fortunately, there appears to be little popular support for such proposals. However, lack of support has not hindered conservative court-packing efforts.
Any unpopular or controversial Supreme Court decision would lead to calls for court packing. Radical decisions; like overturning Roe v. Wade, would make court-packing efforts inevitable.
How Court Packing and SCOTUS impeachment would kill the Independent Judiciary
The nightmare scenario is the destruction of the independent judiciary by a combination of court packing and impeachment.
Court packing is already undermining judicial independence by filling the federal bench with ideologically motivated activists. Impeachment would destroy judicial independence by giving politicians the power to remove any judge that refused to follow orders. Court rulings would become meaningless.
The worst-case outcome is courts filled with judges afraid to make any controversial or unpopular rulings. It would reduce the Supreme Court to a rubber stamp for Congressional or Presidential actions. Judges and justices would go along with whatever politicians wanted to keep their jobs.
The Constitution, human rights, and the rule of law would not survive in such an environment. Armed revolt or civil disobedience would be citizens only means of defending their rights.
Preventing Constitutional Chaos
Fortunately, there are alternatives to such Constitutional chaos. A logical solution would be to have the courts; or a panel of law professors and distinguished attorneys, nominate federal judges instead of the president. The U.S. Senate would still approve judicial nominations.
That would partially depoliticize the process. It would ensure Judicial independence would by limiting politicians’ involvement.
Americans need to be afraid because judicial independence is in grave danger. Events in West Virginia might a harbinger of a Constitutional Crisis that threatens all Americans.