The Court Can Do No Wrong
July 1, 2003
Justice Anthony Kennedy has a habit of answering
questions nobody has asked, and answering them badly. Faced with a legal
issue, he is apt to get all metaphysical, in the manner of a college student
at an all-night bull session, and with similarly sophomoric vanity.
In his majority opinion finding a
Texas sodomy law unconstitutional, he quoted, without embarrassment,
indeed with evident pride, one of his own effusions of a decade ago:
At the heart of liberty is the right to define ones own
concept of existence, of meaning, of the universe, and of the mystery of
Deep, man. Real deep. I can dig it.
But what has it got to do with sodomy laws, or anything else? In his
dissent, Justice Antonin Scalia unkindly punctured this as
Kennedys famed sweet-mystery-of-life passage. No
matter. Kennedy thinks its a classic of jurisprudence, and no doubt
hell keep quoting it. After all, whos going to flunk him?
Conservatives were outraged by
the Courts ruling, and some want to amend the U.S. Constitution to
define marriage before the Court gets funny ideas about same-sex unions.
But why? The problem isnt the Constitution. Its the Court.
There is a simpler remedy than
changing the Constitution every time the Court usurps power or, worse,
changing it to prevent possible future usurpations. Its called
Though two U.S. presidents have
been impeached (and Richard Nixon resigned just in time to escape that
humiliation), not a single justice of the U.S. Supreme Court has ever faced
impeachment. Its time to start thinking about it.
Federalist No. 69, Alexander Hamilton explained the purpose of
impeachment. It has to do with the difference between a monarchy and a
republic. In England, the legal principle had been that the king can
do no wrong. He was above the people and not responsible to them.
Kingship was perpetual and hereditary, the kings
person sacred and inviolable. Removing a king was a violent
business; in England it had meant beheading and civil war.
But in the United States, the
president would be ultimately chosen by, and answerable to, the people. He
would be a mere officeholder for a limited term, charged with upholding
the law. If he seriously violated this duty, he could be removed.
Peacefully. And impeachment wasnt reserved for presidents only.
Impeachment is not a criminal
proceeding, merely a legal correction to the abuse of power. It
shouldnt be considered an extreme measure, like regicide. Every
public official should have to worry about it, just as elected officials
should have to worry about losing their offices in the next election.
Since justices of the Court are
unelected and cant be voted out, its especially important
that they should take the prospect of impeachment seriously, as a real and
not merely hypothetical possibility. We have no other peaceful defense
Yet until now, the Court has been
granted immunity from this remedy. It enjoys what no public official
should ever enjoy: virtually absolute job security for life. It can defy the
Constitution, tradition, and public opinion with impunity. It can bloviate
about the meaning of existence and call it constitutional law.
arrogance is the natural result of allowing the judiciary to escape
constitutional discipline. In effect, we are living under the unwritten
maxim the Court can do no wrong. Like the old kings,
its above the people and not answerable to them. This is contrary
to the whole principle of republican government. A president has to fear
both the electorate and (though far too rarely) impeachment; the Court has
to fear neither.
If anything should be grounds for
impeaching a justice of the Court, it should be a record of usurping powers
the Constitution doesnt assign to the Federal Government, but
reserves to the states. This is exactly what the Court did in the Texas
sodomy case. The Texas law may have been a bad one, but that was for
Texas to decide, not the Court.
Any attempt to impeach members
of the Court at this point would fail. That doesnt mean that it
shouldnt be done. Tyranny depends on a supine public, and if the
American public would even begin talking about impeachment, the Court
might get what it needs most: a good scare.
Correction: After this column had gone to press, my friend
Thomas Droleskey reminded me that Justice Samuel Chase was impeached
in 1804, but was acquitted by the Senate.