Is Impeachment the Answer to Judicial Overreach?

As someone who writes frequently on the topic of judicial activism, I am often asked, “What is the solution?” This is a vital question. Put another way—as I did in a previous essay at American Greatness—Can Activist Judges Be Controlled?

The short answer is: With great difficulty, yes. But if it’s a quick and easy answer you want, forget it. The current crisis took decades to develop. It won’t be resolved with a sweeping gesture.

The “imperial judiciary” is the result of myriad different influences, including the politicization of the law (the triumph of Legal Realism), the Left’s capture of legal academia, the transformation of the legal establishment (state bar associations and big law firms) into an elitist special interest group, and the conversion of the Senate confirmation process into a gauntlet to punish outspoken conservative nominees, such as Judge Robert Bork in 1987.

Understand, too: Congress is complicit in all of this. Congress helped foster a dysfunctional administrative state ruled by unaccountable bureaucrats and unelected judges. Congress has enacted incomprehensible statutes full of ambiguous terms, and delegated their interpretation to administrative agencies. Despite insolent judicial decisions brazenly misapplying laws, our elected representatives have consistently failed to rein in the black-robed tyrants. The immigration laws now defied by contemptuous judges in Hawaii, San Francisco, and elsewhere are, after all, congressional enactments. The judicial resistance is a challenge not only to the election of President Trump but also to the legitimacy of political decisions made by the legislative branch of government. But does Congress care?

Supine Legislators Spurn Responsibilities
When President Obama usurped the legislative branch’s constitutional prerogatives with his Deferred Action for Childhood Arrivals program, Congress did nothing. When judges usurped legislative and executive authority, blocking the president’s travel moratorium and his attempt to rescind Obama’s lawless executive action on DACA, Congress did nothing—no criticism of the judges responsible, no threat of hearings, nor attempts to limit the courts’ jurisdiction over immigration cases, or cracking down on district court judges’ ability to issue nationwide injunctions. Nothing. Lawmakers’ response, rather, has been characteristically supine

So when I hear critics of the judicial resistance call for the impeachment of activist judges as a solution, I wonder who exactly in Congress is going to lead that parade. Even with Republican majorities in both chambers, our 535 senators and representatives cannot collectively pass a balanced budget, repeal Obamacare, fund a border wall, control rogue agencies, or cut federal spending. Indeed, the GOP Senate faces a backlog of outstanding judicial nominees awaiting approval, and just barely averted granting mass amnesty to 2 million illegal aliens with virtually no concessions in exchange.

These are the stalwarts who will impeach miscreant federal judges? Don’t make me laugh.

Judicial activism is a serious problem, with no easy solutions. Judicial term limits or elections for federal judges would require a constitutional amendment—a near-impossible hurdle. Ditto constitutional amendments (or a convention of the states) to “fix” all the erroneous decisions the Supreme Court has issued over the years, distorting the Constitution’s original meaning. What good would it do to amend the Constitution to overturn incorrect judicial decisions if the errant judges could simply misinterpret or ignore the amended language (as they did the original text)?

Pursuant to Article III, Congress has plenary power over the jurisdiction of the lower federal courts, and the appellate jurisdiction of the U.S. Supreme Court, but has shown no inclination to use that power to resist judicial encroachment, for fear of being accused of tampering with the “independence of the judiciary.”

This risible canard—the “independence” of the courts from the law itself—has been relentlessly promoted by the cheerleaders for judicial activism in the legal academy, commentariat, and bar, and Congress has no political will to resist it any more than they can manage to resist other popular tropes. The political scalding that Franklin Roosevelt received over his aborted “court packing” scheme in 1937 (which accomplished its goal of nudging recalcitrant justices to uphold New Deal reforms) would deter a cowardly Congress from pursuing this route.

“Borking” Originalists
As I
previously reported (quoting “The Great One,” Mark Levin, certainly no squish on this subject), since the unsuccessful impeachment of Associate Justice Samuel Chase in 1804, the “limited and extraordinary power of Congress to impeach and remove a judge from his post has been denuded to the point where a judge or a justice must act in a flagrantly illegal fashion before that conduct would be considered beyond the Constitution’s ‘good behavior’ standard as it is currently interpreted.” This quote is from Levin’s excellent 2005 book, Men in Black: How the Supreme Court is Destroying America.

I share Levin’s assessment, which is not a bad rule of thumb as long as the Left dominates the Beltway media and Congress cowers in fear of being targeted by liberal special interest groups.

For example, imagine if People for the American Way, the Southern Poverty Law Center, or some other equally phony left-wing propaganda outfit decided to “bork” sound originalist judges already confirmed to the federal bench, such as Justices Samuel Alito, Clarence Thomas, or Neil Gorsuch. If “impeachment” was a viable political tool, requiring no more than a majority vote to remove a sitting judge, aggressive Democrats would be clamoring to impeach conservative judges day and night.

In fact, liberal journalists have already begun making noises about impeaching Justice Clarence Thomas, for events that allegedly occurred at or before his confirmation hearings in 1991! Fortunately, the Samuel Chase “precedent” serves as a firewall to prevent this type of mischief, and it would behoove conservatives to think long and hard before re-opening that particular Pandora’s Box.

Ultimately, only one solution exists to the problem of judicial activism, and that is to restore a culture of respect for the modest judicial role contemplated by the Framers, honoring the separation of powers, reviving federalism, and demanding fidelity to the Constitution as written (not the “living Constitution” favored by progressives) on the part of all branches of the federal government—judicial, legislative, and executive.

We did not arrive at our current predicament overnight, nor can we escape from it easily or quickly. As a nation we must insist on constitutional government—“a republic, if you can keep it,” Franklin warned—and resolve to muster the political will to enforce the long-ignored Constitution entrusted to us by the Founding Fathers. There is no alternative.

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21 responses to “Is Impeachment the Answer to Judicial Overreach?”

  1. If solving the problem of judicial overreach requires that we “restore a culture of respect for the modest judicial role contemplated by the Framers,” it won’t happen in either my lifetime or yours. Sorry, I’m not willing to wait, and if some teacups or other cherished mementos have to be broken in the struggle I’m OK with that. Let’s be realistic about the fact that the marvelous plan of the founders designed to prevent tyranny, didn’t. While keeping as much of their framework as we can intact, these times call for an aggressive response to the commie left that now sits atop our culture gloating.

    • How? What “aggressive response” do you have in mind that is both politically realistic, and likely to be effective?

      • Going around the judiciary is what he is talking about. If the judges are not following the Constitution, why are they so sacrosanct that they can’t be ignored? Right now, the judiciary is just usurping power from the executive branch, eg., immigration and mandating transgenderism in the military. It was the belief of Abe Lincoln that judicial opinions not based in constitutional law should be ignored. This article doesn’t give any realistic solutions to address judicial overreach, and you are just hoping judicial overreach will magically go away if everyone understands federalism better.

  2. Mark:

    Good piece and spot-on re: futility of legislative Branch action.
    Question: In the hands of a deft / skillful and right thinking Executive, willing to contest Judicial arrogance, could we see some effective pushback and one resulting in a proper *comeuppance* of the Black Robes?

    In any event, so much of the commentary / proposals on reigning in the Judiciary strikes me as a form of wishful thinking more appropriate to a Walter Mitty type.

    Solutions comprised of air and words absent action may not be expected to effect change.
    In short, if you want to keep a republic, get off our collective asses and do something about it.


    • I don’t see Jacksonian defiance as a viable option. Limiting jurisdiction and remedies would require congressional action. The executive can only do so much. A solid majority of sound justices would go a long ways to curbing activist lower court judges.

      • I was thinking of something *short* of Jackson; more akin to Obama’s veiled threat to the Court during SOTU for a starter and then perhaps, a measured but calculated “threat” to disregard errant SCOTUS and other Art. III court opinions. Perhaps, this could motivate both the Legislative and the ultimate font of authority, the citizenry, to demand reasonable interpretation of COTUS.

      • It would help to give a “civics lesson” to the American public about what is at stake. Perhaps President Trump or General Sessions could deliver a speech on the subject. Most Americans would be receptive.

  3. Impeachment is a legal solution to a lawless judiciary but not a politically acceptable one.
    Roughly half the country is delighted with a lawless judiciary, a judiciary that rules on politics not on law.
    With half the country voting that way, you can’t impeach lawless jurists.

    • You throw lawlessness around like a football. Is a different opinion or interpretation of laws that you don’t agree with lawless or opposition?
      Impeachment for crimes and the like is totally different that what you post.

      • If noting that a group declaring a “living constitution”, i.e., an “opinion” or “interpretation” of the Constitution having nothing to do with its actual words or the documented intent of those who enacted the articles and amendments is “throwing lawlessness around like a football”, then fine, can you throw or can you catch? I doubt it.

    • Doesn’t that mean we can do nothing at all about this situation?

      • I wrote that half the country is happy with a lawless judiciary. You did not challenge that assertion. So how can we change the minds of any part of that half? By attempting to impeach judges they appointed? I don’t think so. If they were capable of critical reasoning, passing some facts to them would be helpful.
        But they’re not.

    • And in the prior admin, an executive willing to make up laws by fiat. It’s fundamentally broken, and trying to repair an edifice on a rotting foundation doesn’t work.

  4. Sounds like the only way to force the government to follow the Constitution is revolution then. Clearly electing different people doesn’t matter if Congress refuses to ever do its duty

  5. The left is already in full revolution mode. We just pretend the law they subvert still applies, suckers that we are.

    I think we have 3 options:

    1) Submit to the authoritarian globalists (Democrats and go-along RINOs)

    2) Divide into Red America and Blue America with different laws within one quasi-country

    3) Civil war

    • Option 3 is viable and has many precedents worldwide.
      Too bad the supporters of a “living Constitution” are so history challenged as to proceed blissfully ignorant of what option 3 means. Perhaps they fancy that “The Pelican Brief” is a fiction less likely than truth. While publishers reject a truth, ridiculed as impossible if presented as fiction before the event.

  6. Impeachment is not an answer. Judges are just one more political weapon to be used by parties and neither party will remove their own judges. (Well, Republicans might because they are cowards.) The solution is to use Congressional power to abolish courts and/or reduce the number of judges on a court. Every time a federal court issues a bad ruling, as they have been doing with great abandon since Trump was elected, Congress should remove one (or more) seat from the bench. Even the 9th will figure it out pretty quickly.

  7. There is a solution, but it requires some courage by our elected representatives… and that is the passage of a Judiciary Act laying out the methods by which judges are required to come to decisions. I see no reason why Congress could not mandate originalist analysis by the judiciary. We should remember that the only court discussed in the Constitution is the Supreme Court. The creation and ultimate oversight of inferior courts is left to Congress.

  8. If there are more and more calls in Conservative media for impeachment of wildly straying judges there might develop at least some appetite for that in Congress and some discussion of it in Congress. Enough maybe to cause our imperial black robes to consider their over reach more carefully?