Impeaching the Supreme Court Justices

If the Supreme Court Justices dump the Affordable Care Act we should dump them. (photo: Tim Sloan/AFP/Getty Images)
If the Supreme Court Justices dump the Affordable Care Act we should dump them. (photo: Tim Sloan/AFP/Getty Images)

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By David R. Dow, The Daily Beast

04 April 12

ou think the idea is laughable? Thomas Jefferson disagreed with you.

Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Salmon Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.

The problem with the current court is not merely that there is a good chance it will strike down a clearly constitutional law. The problem is that this decision would be the latest salvo in what seems to be a sustained effort on the part of the Roberts Court to return the country to the Gilded Age.

During that period – which ran from the years after of the Civil War to the start of the 20th century – wealth became highly concentrated and corporations came to dominate American business.

At the close of the Gilded Age, the U.S. infant mortality rate was around 10 percent – a number you find today in impoverished Central African nations. In some cities, it exceeded 30 percent. Women could not vote, and their lives were controlled by men. Blacks lived apart from whites and comprised an economic, social, and political underclass. Corporations exerted an unchecked and deleterious influence on the lives of workers.

All these ills were ultimately addressed by the federal government, but the strongest and most sustained resistance to fixing them came from the court. One exception was the great Justice Oliver Wendell Holmes, who argued that where economic regulations are at stake, judges must respect legislative decisions aimed at protecting society’s most vulnerable members. Our Constitution, Holmes famously wrote, does not enact social Darwinism. If the legislature acts to protect the poor and less powerful, its actions must be respected by the judicial branch.

That idea doesn’t appear to hold much water with the current court. Justice Clarence Thomas, in particular, has a well-known affinity for the values of the Gilded Age. But he has quietly gone from being an outlier to being only one of five consistently regressive votes.

The pattern began with the court’s 2007 decision in Gonzales v. Carhart, a case involving a rarely used, late-term abortion procedure. In holding that the government can prohibit abortion even where a woman’s life or health is at risk, the court overturned a decision that was not yet 10 years old.

To justify the ruling, Justice Anthony Kennedy – an ostensibly staunch believer in individual liberty – explained that some women who might otherwise undergo it would come to regret their decision. Ah, fickle women! Since Roe v. Wade the abortion debate has always involved male-dominated legislatures enacting laws telling women what they can and cannot do. The Roberts Court, it seems, is similarly not averse to helping protect women from themselves.

Also in 2007, the court ruled that a Seattle school district’s plan to achieve racial balance in its public schools was unconstitutional. Reasonable people can of course disagree about whether using race to arrive at a diverse student body is good policy or bad. But there is an unquestionable moral distinction between using race to encourage racial integration versus using race to keep the blacks away.

The latter is, of course, what the court allowed in 1896, when it upheld the so-called “separate but equal” doctrine in Plessy v. Ferguson. Justice Harlan famously dissented in Plessy, insisting that the Constitution is colorblind. In a perverse rhetorical move, Chief Justice John Roberts, writing for the court in the Seattle case, suggested that Harlan’s phrase applies equally where the government is trying to promote the blending of the races rather than maintaining their separation.

And then came Citizens United, in which the court struck down a popularly supported, bipartisan effort to place limits on the ability of the wealthy to dominate political discourse. Income inequality is a fact of life in a capitalist system. But when it comes to choosing our elected representatives, the people are supposed to stand on equal footing. Your right to control your destiny by electing people who share your visions and values is not supposed to depend on the fatness of your wallet. But now, thanks to five justices, it does. In ruling that corporations have a First Amendment right that precludes Congress from regulating how much money they can spend to support political candidates or causes, the court propped up a regime where the voices of the wealthy drown out all the rest.

Each of these cases was decided by a 5-4 vote, along predictable and ideological lines. Each overturned comparatively recent precedent. Each paid obeisance to a 19th-century norm. And while any individual ruling can always be justified or explained away, a larger truth emerges ineluctably from the whole. A decision overturning the Affordable Care Act will fit snugly into this narrative.

The vacuity of the arguments against the health-care law has been well covered (see especiallyAkhil Amar’s analysis in Slate). I will add only two points.

First, Congress’s authority in passing the law rests on an elementary syllogism: You don’t have to drive, but if you do, the government can make you buy insurance. The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do). That logic is obviously satisfied in the health-care context. You are going to use medical care, so the government can make you buy insurance in order to make sure you can pay for it. Liberty, like every other human and constitutional right, is not absolute. Under some circumstances, it can be regulated.

Which leads to the second point: critics of the health-care law say the only reason the rest of us have to pay for medical services used by people who have no money is that laws require hospitals to treat people who come in for emergencies regardless of their ability to pay. In other words, the critics say, the only reason there is a social cost – the only reason the syllogism works – is because of the underlying laws requiring hospitals to treat the poor.

Unlike silly examples involving broccoli and cell phones, that so-called “bootstrap” argument is sound. But here the critics drop their ideological mask as surely as the court dropped it in the Gonzalesruling. Their argument can be restated thusly: if you repeal laws requiring hospitals to treat the poor, you eliminate the constitutional basis for mandatory insurance coverage.

You don’t have to pull the analytical thread of that reasoning very hard to see that it boils down to an argument for allowing the poor to die. And if the Supreme Court strikes down the health-care law, that is exactly the ideology it will have to embrace. It will be saying that Congress cannot guarantee medical coverage for the poor and then implement a system to pay for it. In other words, the only people entitled to health care are the people who can afford it.

The last time the court went down this path, saner heads prevailed. Oliver Wendell Holmes’s view was historically and constitutionally correct, and the court finally acknowledged this in a pivotal 1937 case, West Coast Hotel v. Parish. In West Coast Hotel, the court ruled that the Constitution safeguards not just individual liberty but community interests as well; and in matters of economics, it is the legislature’s job to strike the appropriate balance between those two. If the Roberts Court overturns the Affordable Care Act, it will be mimicking the discredited court of 1935.

We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.

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18 Responses to Impeaching the Supreme Court Justices

  1. Pingback: David R. Row « dreamweaver333

  2. Experienced says:

    David R. Dow’s legal record betrays his bleeding-heart, far left, crackpot politics. His opinion, honored by this softhearted blog, is foolishness to the extreme.

    Be careful of honoring fools. It puts you in bad company.

  3. Tina says:

    Poof, from last Sunday, April 1…..

    “Truth is, I don’t know how many supreme court justices have kept their noses clean…but you’ll find out shortly. The matrix knows. Get out your copy of black’s [law]dictionary and get ready for the new system.”

  4. Damon says:

    If you support Obama but Romney virtues rule the land you will be paying taxes under threat of force for things you do not agree with. If you support Romney but Obama virtues rule the land than you will be paying taxes under threat of force for things you do not agree with. When we have liberty and a free society you can support anything you want with your time and money. Arguing over which statist politicians are closest to your ideology is being asleep. Supporting the free society, is the awakestate.

    • Mike says:

      Well said. Many health options have to do with lifestyle. I have a supervisor who just quit smoking along with his wife. Between a liberal nightly intake of beer and three packs a day, she had wasted to 92 lbs and he was experiencing debilitating high blood pressure. I was continuing to pay him though he was unable to work half the time.
      I finally told him to either go to the emergency room or I’d have to let him go.
      Four months later, they are off the cigs, cut down on the beer, feel better than they have in years, are making monthly payments to the doctor and the hospital and have money left over every week.
      All because they made a personal choice. Lack of insurance was not their problem.
      I am not against a major medical low cost option offered by the government for those who don’t have it for emergencies etc but the day to day health decisions of an individual have so much to do with health. Also, we could all save a ton of money if true prevention and natural medicines were promoted instead of fluoride laced water, mercury filled vaccines and debilitating chemotherapy were eliminated.
      All Things Are Possible.

      • Suzy says:

        Mike this is so very true all what you have said. We really have to look at our lifestyles before it kills us. Try the alternative medicine way and get away from ‘Big Pharma’, go back to nature and not these killer cures which don’t cure only maybe on the short term!!

  5. Rev, Joe C says:

    WOW ! What happened to ” Love your neighbor AS yourself “. Or , ” Do unto others , AS you whould have them do unto You ” .
    I do not believe that corporations should make profit from peoples illness . I believe that is IMMORAL ! In a society that accepts the concept of Universal Love as its ‘ guiding principal , all of us should shoulder the cost of caring for each other . Lets get on with doing it !
    Hugs , to all . Rev. Joe

  6. Kate says:

    Please people! The “affordable healthcare act” is a nightmare! It will be used to completely eliminate any and all alternative health care providers. They have been attacked constantly.
    NOTHING changed when Obama was elected. This law is Big Pharma’s dream. Everyone
    will be microchipped, and forced to get their vaccinations and take their drugs!

  7. Pingback: David R. Dow – Impeaching The Supreme Court Justices If They Overturn Health-Care Law- 6 April 2012 | Lucas 2012 Infos

  8. And the Supreme Court Justices are also a part of the Cabal. They are not for us, they are for those who we are fighting against. So right now with everything that is going on in the world they find themselves strattled over the problem. Whom do they tick off with whatever they decide will cause them problems. Is this another dog and pony show with them in the end rule in favor of Obama? We will see, but it is all a sham. Emma

  9. netace says:

    Ridiculous claptrap! We have an UN-constitutional “healthcare law” that was shoved down our throats by the DARK ONES – and Dow calls this “social progress”! The Justices who undermine Constitutional values are the Liberals, who (like their counterparts in Congress) delight in decisions that will destroy freedom, destroy the family, and destroy the basic Judaeo-Christian religious principles upon which nearly all laws on Earth (except for the Satanic Sharia nonsense) are founded. These are the ones that take their marching orders from Kissinger and Company, just like Pelosi, Reid and Obama – the Dark Stars.

    • Suzy says:

      Hold on a minute ‘except for the Satanic Sharia nonsense’ , Shariah is not nonsense and all Muslims live by Shariah and it is very important. You need to investigate the truth of the matter and not except all the false ideas about it. Non Muslims critizing Muslim laws is quite ridiculous. A lot of the time things are taken well out of context as surely every enlightened person will know?!!

      • Experienced says:

        Suzy. You have bought into the politically correct version of Sharia. It is an evil power exercized by men with absolute control over those who have “submitted.”

      • Suzy says:

        Experienced, I haven’t bought into the politically correct version of Sharia as I am a Muslim and live by the laws of the Shariah ( after all we believe it is God’s laws so it’s not something we tend to argue with) and it is by no means the way it is portrayed in the west. The trouble with Shariah arises when some so called Muslim countries interpret it in their own way and I can understand how non Muslims can get confused. I am by no means an expert but I have been a Muslim for nealy 33 years and I know the workings on Muslim issues a tad bit better than perhaps a lot of non Muslims. I see so many western people on the media and alternative news analysing the Muslim issues with their opinions, it’s facts you need not opinions. If you want to know the real deal you really need to investigate things and not rely on people that have no experience on certain places and topics, would also help if they have been to the places and even knew the people. Sorry I digress.

    • Jean says:

      I”m not sure where you get this information. It doesn’t ring true to me! Hugs, ~Jean

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