http://www.readersupportednews.org/opinion2/300-196/10790-impeaching-the-
supreme-court-justices
Impeaching the Supreme Court Justices
By David R. Dow, The Daily Beast
04 April 12
You 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.
Supreme Court Justices
If the Supreme Court Justices dump the Affordable Care Act, writes David
Dow, we should dump them., Tim Sloan, AFP / Getty Images
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 especially Akhil 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 Gonzales
ruling. 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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“Those who make peaceful revolution impossible, make violent revolution
inevitable” -JFK