First off, I'm very happy with the discussion to my most recent VRA/SCOTUS accountability diary, When SCOTUS Rules in Favor of the NSA, Will You Call for Impeachment Then?. There were a lot of very productive and intelligent exchanges that helped me further clarify my understanding and thinking on the subject, and I've noticed that objections to impeaching John Roberts, Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy tend to fall under a few general categories and recur often, so I would like to address them systematically so that we can refer back to this diary when they're raised in future discussions.
1. It is the job of Supreme Court Justices to render opinions, so why should they be impeached for doing so?
First, the premise is false: If it were the job of Supreme Court Justices to render completely arbitrary rulings, we wouldn't need the other two branches of government - we could just have five of nine people tell us what they want the law to be, and that would be the law. And if that were the case, they would not even have to be members of the legal profession to sit on the Court because the laws existing outside of their own rulings would not be relevant. Why would professional legal training be necessary to issue Supreme Court rulings if there is no requirement that rulings adhere to any external standard of law? Anyone can make up their own rules, especially if they're willing to apply them capriciously: If that's the job of the Supreme Court, then any amount of legal training and experience would be superfluous.
The actual role of a Supreme Court Justice is to apply logic and legal doctrines to reconcile the many requirements of the Constitution, and then judge the disposition of laws, regulations, and actions against that framework. This is not a purely or even majorly subjective exercise, because if it were, then once again there would not be any legal training necessary - nine random people could do the job just as well if all it consisted of were expressing mere opinions and feelings. Because they involve logic and argumentation, not all rulings are created equal - and at an extreme, not all rulings legitimately express the law or represent lawful exercises of judicial authority.
2. Regardless of the legitimacy of a ruling, how does that justify impeaching a judge?
Supreme Court Justices are appointed for life, so if there is a pattern of lawless, arbitrary rulings designed to attack the foundations of American democracy, it would be difficult to argue for allowing them to remain on the Court - especially given the inclusion of impeachment powers in the Constitution. I doubt very much that the Founders only intended judges to be removed from the bench for committing individual crimes like murder but not to protect the citizenry from judicial tyranny.
So a Supreme Court ruling that ignores both the letter and spirit of the 15th Amendment - as the VRA ruling does - that supersedes explicit Congressional authority in this matter granted under the Constitution, and occurring as part of a long and continuing pattern of arbitrary rulings designed to undermine the voting rights of the people for the sake of partisan electoral advantage - that is clearly an abuse of power and an act of judicial tyranny. So if the power to impeach judges was in any way intended to protect the public from tyranny in the same way that the power to impeach Presidents was, then this is clearly a case where invoking it would be called for. Other hypothetical examples of how judges could be guilty of abusing judicial powers:
1. Holding someone in contempt for refusing to have sex with them, or for being of a race they dislike, or other illegitimate basis.
2. A pattern of refusing to recuse one's self despite plain conflicts of interest and then ruling predictably according to those interests.
3. (Real case) Denying a defendant the right to cite the 1st Amendment as a defense in a case where they're being prosecuted for writing protest slogans in chalk.
The above would be clear examples of judicial tyranny, so we can dispense with any lingering claim or implication that no possible act of judicial authority can be abusive. The recent VRA ruling is one of the most if not the most egregious case of such abuse given that it occurs from the highest Court and is a radical departure from generations of established caselaw. Impeachment powers are about protecting the citizenry from tyranny, so if it's not legitimate to invoke them in cases where abuses of power are occurring brazenly and repeatedly from judges, then your view of government is irreconcilable with rule of law and constitutionalism.
3. But that's just your OPINION!
The denigration of inconvenient fact- and logic-based arguments as mere opinion has been a feature of authoritarian thinking for many years, and has played a major role in politics over the past decade and a half. "Is Saddam Hussein building up an arsenal of WMDs and gearing up for Armageddon? Some say yes, some say no - it's just a matter of opinion, and we're going to assert our highly-qualified and authoritative opinion that he is and that mushroom clouds will be blooming over Chicago this time tomorrow unless we invade Iraq. Was Saddam behind 9/11? In our opinion he is, but if you have another opinion, well, that's just your unpatriotic point of view. You think what we're doing is torture? Well, you're entitled to your opinion, but we'll keep acting on our authority to defend America how we see fit."
So while it is correct to say my opinion is that the Roberts Five have both exceeded their authority and issued a lawless ruling in gutting the VRA, it is not correct to dismiss it as just my opinion: Not unless you would say the same thing about asserting that waterboarding is torture, that torture is a war crime, that the invasion of Iraq was a war of aggression, that you don't have a right to shoot me for looking different than you, or any other position founded in law, common sense, and fundamental legal, philosophical, and moral logic. So you tell me: Are those things merely my opinions, with no greater weight to them than if I were expressing a preference for the Rolling Stones over The Beatles?
Suppose someone shot you because they don't like the t-shirt you're wearing, and you call the cops on them. Now imagine the arriving police officer says, "What, you expect me to arrest someone just because of your opinion that they shot you? And if they did shoot you, how do I know it was a crime? All I have is your opinion that it was. Get a judge to examine your wound and rule that it's both a gunshot and an illegal act, and then maybe I'll consider arresting the guy." That police officer should be fired, right? I assume Daily Kos isn't too far gone for the general consensus to be that he should.
Another place where the "just an opinion" mentality seems to proliferate is in religious and corporate attacks on science, particularly human evolution and climate change. Fortunately, unlike courts, science is not subject to a politically-appointed hierarchy where five of nine people are considered the final word on what is and is not reality. Because if it were, you can bet the official word would not be in favor of human evolution and climate change being established fact. Rather, the result would be atrocities against reason like Lysenkoism, or the various state laws enacted by Forced Birthers requiring doctors to lie to patients about the risks of abortion, or the North Carolina law making it illegal for the state to report sea level rise. But while laws are human-created structures, there is nonetheless logical argumentation involved, so it is not "just an opinion" that, for instance, torture illegal.
So it is not "just an opinion" that the majority's ruling in the VRA case was an arbitrary, lawless abuse of power. Every fact of the case and the context in which it occurred demonstrates that it is, and people whose fundamental rights as Americans are under direct assault by this Court will not be mollified by obtuse denigrating and the equivalent of gaslighting being undertaken by people who insist it's all just a matter of opinion. The people who find themselves on Election Day 2014 being denied the right to vote based on petty quibbles over their paperwork will not find it to be a matter of interpretation or idle dispute. They'll know exactly what's going on, and we know exactly what's going on right now, so cut the shit.
3. Conservatives wanted to impeach the Warren Court
This is another example of the Orwellian "reality is opinion" nonsense: If conservatives hold that 2 + 2 = 5, then the entire subject of 2 + 2 is somehow invalidated and people who say that it's 4 are equivalent to the former for even bringing it up. Conservatives wanted to impeach Bill Clinton for being a Democrat and daring to win a second term, so by this logic it would have been totally invalid to demand the impeachment of George W. Bush for his litany of tyrannical atrocities: Saying that Bush should have been impeached for being a lawless tyrant guilty of torture and mass murder would make you no different from Kenn Starr under this standard.
The Birchers wanted to impeach the Warren Court and later liberal courts for expanding the rights of the American people beyond what was explicitly granted in the Constitution, because to the conservative perspective the proper function of laws is to limit the rights of the people before power, not protect them. Roe v. Wade under the Burger court infuriated them because it guaranteed women control over their own bodies, which is a fundamental human right, thereby taking away the nonexistent "right" of states to force women to give birth. It did not force women to have abortions against their will, which would have been the only equivalent opposite to their position. There is no halfway rational analogy to the Bircher attacks on liberal Courts and demanding the impeachment of a hyperpartisan, arbitrary right-wing Court majority whose only legal foundation is "What will maximize the chances of Republican electoral victory?"
The Roberts Court is engaged in judicial tyranny that has already had major consequences on American democracy. We are faced with a gerrymandered GOP House majority despite their having gotten fewer votes than Democrats in 2012, not to mention all the state governments in even worse straits, and they are simply piling one lawless ruling on top of another, using their own arbitrary decisions as predecent for future ones. This is not law, and not sustainable if the people are to have any voice in the future of this nation. Something has to give, and I have no intention of it being the Constitution.
4. There's no public support for impeachment
There's public support for free and fair elections, so what remains to be done is to show people how it has become increasingly difficult to have them while this majority remains on the Court. And just speaking broadly, public support is something that has to be built over time for progressive reform efforts: People don't just spontaneously know the way forward out of ESP, especially in a malfeasant media environment full of false premises, revised history, and an unwillingness to prioritize issues like the Voting Rights Act. Change has humble beginnings, so the choice each person has to make is whether they're part of the solution, part of the problem, or just plankton waiting for other people to make something popular enough before they'll hop on board. A progressive is someone willing to stand up and tell the truth to a room full of people who vehemently disagree, and pursue what is necessary among people who would rather go back to sleep.
5. Impeachment wouldn't pass Congress.
Neither would any other element of our agenda. And yet we don't stop advocating and organizing for it; we don't wait around for a better Congress to promote things like single-payer healthcare, progressive taxation, environmental protection, social services, education, etc. The reason is because we understand that regardless of current political circumstances, we must always be building up and strengthening the political foundations of these issues so that when there are opportunities to break through into Washington, there is already tons of pressure to make it happen. In other words, present obstacles are no excuse to be negligent in building the future.
Our actions affect what is and is not politically possible: It's not some unapproachable cosmic law to which we are subject and yet have no control over. Every time someone says "It will never happen," my head practically explodes with the simultaneous realizations of all the historical changes that people had dismissed as impossible before they happened. The most air-tight totalitarian state in history, East Germany, spontaneously dissolved over a matter of days without a civil war ensuing because the people from top to bottom simply decided it was over. Apartheid in South Africa ended with an election, not with blood-soaked militias arriving in Pretoria. There is now such a thing as Arab democracy, however turbulent and saddled with the menace of unfinished business.
So if your primary objection to impeaching the Roberts five is that it's never going to happen because it's unlikely under the status quo, you need to step outside your little bubble and look at the world and at history. I don't think most of the people in the great struggles of history who accomplished major changes would think much of the obstacles we're talking about here, especially since they undoubtedly faced similar rhetoric. Passing civil rights laws in the first place was a home run for this country, but if the umpires calling the game are corrupt, we're not done yet.
6. The exact threshold for passing impeachment (67 Senators) is too high to ever be practical.
It's the same Senate threshold for passing Constitutional Amendments, but without the need for the consent of state legislatures. In other words, impeaching the Justices is more likely to occur than passing a Constitutional Amendment to address the Court's made-up objections to the existing VRA, and yet look at all the efforts underway to do just that. I don't see anyone pooh-poohing those Amendment drives as impractical or silly, let alone stridently attacking them. So much of the reaction to the issue of SCOTUS impeachment has been surreal, irrational, and inconsistent to say the least.
Moreover, if the Roberts Court is willing to ignore the 15th Amendment, I don't see why anyone thinks they would fail to ignore an Amendment saying "We really, truly, seriously MEAN IT this time." If by some miracle we passed a Constitutional fix to VRA, is that going to magically transform five arbitrary partisan crooks into real judges who would say, "Wow, I didn't realize you were actually serious about that stuff. Thanks for clarifying that, America! We will now stop striking down civil rights laws, and respect the American people's right to vote against Republicans." It's pretty obvious they would ignore it the same as they ignore what's already in the Constitution. BUT, that doesn't mean we shouldn't pursue Amendments, just that we should be aware that throwing at least some of these people off the Court is also crucial.
7. Wouldn't it be better to pass legislative fixes to VRA?
We should pursue legislative fixes to VRA, but only because the original was incomplete - not because five corrupt partisan Commissars ruled that up is down in order to give the GOP yet another illegitimate electoral advantage. The ruling striking down preclearance was illegitimate, so as far as I'm concerned - and as far as most of us should be concerned - it remains the law of the land. Nonetheless, we should be realistic about the fact that there is no possible legislation concretely reaffirming federal preclearance in defense of civil rights that this Court would fail to similarly strike down on whatever arbitrary grounds it deems fit to conjure. None. Their objective was to let states suppress minority voters to increase Republican prospects in upcoming elections, period. So no legislation that does that opposite would be allowed to stand, even if by some miracle it passed the phalanx of gerrymandered/purchased Republican majorities their own previous lawless rulings had created.
So, as with Constitutional Amendments, it should be pursued anyway as a matter of necessity to assert our role in the process, but at the same time the Justices themselves must be under sustained attack and face at least some tangible public sentiment that they have lost legitimacy and may be thrown off the bench at some future time if the pattern continues.
8. It would set a bad precedent that Republicans would exploit by attacking liberal Justices.
This is basically the same as the reference to the Bircher attacks on the Warren Court, so I refer you back to the response to that item. The power to impeach Supreme Court Justices exists because it's a necessary hedge against judicial tyranny, and it would be difficult to articulate a plainer scenario of judicial tyranny unfolding than what's been going on since Bush v. Gore, Citizens United, and now this. Moreover, the fact that conservatives would abuse impeachment powers, as they've already done in the Executive sphere, does not change their underlying necessity nor alter the legitimacy of instances where it's clearly called for.
The fact is we're not going to wait this Court out: They're going to do everything in their power to guarantee maximum Republican electoral performance a maximum amount of the time so they can retire under a Republican President and the liberals on the Court are steadily phased out by time. You can't win a game where the referee is corrupt, and pretending they're not is not going to let you win by miracle.
No matter how we assert our fundamental rights as human beings and Americans, conservatives will try to retaliate against us and punish us for it. So yes, there would be baseless retaliatory impeachments launched by conservatives against real judges for daring to uphold the law when conservatives find it inconvenient, just as there were baseless retaliatory impeachments in Wisconsin when the people of Wisconsin tried to throw Scott Walker and his cronies out of office. That's what criminals do: They retaliate against the people trying to hold them accountable in every way they possibly can. That's not an excuse to hide in your basement and let them inherit the Earth.
Impeaching the Roberts Five for abuse of power would not be a "precedent" for conservatives to impeach liberal Justices for doing their jobs - it would just be an excuse and a provocation, and there's a world of difference. Telling the teacher on the bully who torments you every day would not set a "precedent" for them to wage a personal jihad against you to get you in trouble in retaliation - it would just be the excuse they use, and the provocation that made them focus on that kind of attack instead of what they were already doing. So yes, in addition to attacking the American people legislatively and through the courts, they would also be provoked into waging illegitimate impeachments - not that the lack of "precedent" stopped them in Bill Clinton's case, or ever would stop them if they felt they could get away with it.
So if you grant that abuse of power is taking place, that impeachment is justified, and that pursuing it is necessary, then noting that Republicans would retaliate against the American people for daring to stand up to them is not a reason to avoid it. They will retaliate against us forever for daring to draw breath in "their" world, and the only thing that stops them from ruling over us completely is that we stand up for ourselves. So let's do so.
---
I'm sorry, but the objections to impeaching the Roberts Five have been thoroughly and unambiguously debunked. So either hop on board the accountability train or forever hold your peace from now on about court rulings.
Some more quotes from people who've signed the Roberts Five impeachment petition, explaining their choice to support it - the first being from our very own Denise Oliver-Velez, who is a Front Page contributor:
Denise Oliver-Velez SAUGERTIES, NY
Because the Roberts' 5 are trying to turn back the clock to the days of literacy tests and poll taxes
alice kleeman CONCORD, NC
These members of the Court are bastardizing the purpose of it's creation.
David Parker VALLEY VILLAGE, CA
Because this comes close to violating the equal protection clause of the 14th Amendment.
Read the petition (also linked in my sig line) to see more signatory comments, and sign on to be part of the solution today!