"For more than two centuries," Chief Justice John Roberts said on Tuesday, "it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose."
Although Roberts did not mention Donald Trump, the timing suggested he was responding to a Tuesday-morning Truth Social rant in which the president declared that federal judges who impede his agenda "should be IMPEACHED!!!" That recommendation echoed presidential adviser Elon Musk's oft-repeated solution to the inconvenience of judicial review—a prescription that would undermine the rule of law by punishing judges for daring to disagree with the president.
Trump's post referred specifically to U.S. District Judge James Boasberg, who is considering a challenge to deportations based on the rarely invoked Alien Enemies Act. That 1798 law authorizes the president to deport "natives, citizens, denizens, or subjects" of a "hostile nation or government" when there is "a declared war" with that nation or government or it has mounted an "invasion or predatory incursion." The law does not provide much in the way of due process, although it does charge judges with conducting "a full examination and hearing" of each complaint against "any alien enemy resident." The Trump administration controversially argues that the law can be applied to suspected members of Latin American gangs.
Trump described Boasberg as "this Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama." Boasberg, Trump noted, "was not elected President" and "DIDN'T WIN ANYTHING!" Trump, by contrast, "WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY." Since Trump is "just doing what the VOTERS wanted me to do," he argued, Boasberg has no business interfering. And if he insists on doing so, Trump said, he should be impeached, and so should "many of the Crooked Judges I am forced to appear before."
A few hours after that post, Rep. Brandon Gill (R–Texas) said he had introduced an article of impeachment against Boasberg, charging the "radical activist" with "high crimes and misdemeanors." The article says Boasberg violated his oath of office by "us[ing] his judicial position to advance political gain while interfering with the President's constitutional prerogatives." The Alien Enemies Act, Gill says, gives the president "sole and unreviewable discretion" to "determine whether an invasion has taken place" (and also, presumably, to decide what counts as a "hostile nation or government"), meaning that Boasberg "has abused the powers of his judicial authority" even by considering whether that law authorizes the deportations of alleged gang members.
Last Saturday, Boasberg issued a temporary restraining order aimed at halting those deportations while the case is pending. He is now trying to figure out whether the Trump administration deliberately defied that order by proceeding with the deportations anyway.
"I'd be open to impeaching judges for persistent bad-faith or wild rulings," says conservative legal commentator Ed Whelan. But he sees "nothing remotely like that here." In fact, he says, "Judge Boasberg's critics have yet to make a clear and compelling case that his order was wrong." Whelan adds that "impeachment threats are at best performative nonsense," and he worries that "they may provoke threats of violence against judges and family members."
Even without delving into the legal merits of Boasberg's order or Trump's weird interpretation of the Alien Enemies Act, it should be obvious that something is wrong with the president's assertion that his electoral mandate precludes judges from reviewing his decisions. Musk makes the same basic argument, saying "federal judges who repeatedly abuse their authority to obstruct the will of the people via their elected representatives should be impeached." Trump and Musk seem oblivious to the fact that judges are supposed to "obstruct the will of the people" when it is inconsistent with the law. Judges may be wrong in reaching that conclusion. But as Roberts noted, that is why "the normal appellate review process exists."
Although chief justices rarely make such public pronouncements, this is not the first time Roberts has felt compelled to take a stand in defense of judicial independence. "We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said in 2018 after Trump condemned the "Obama judge" who had ruled against one of his immigration policies. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."
Two years later, Roberts delivered a similar rebuke, this time in response to inflammatory comments that Senate Minority Leader Chuck Schumer (D–N.Y.) had made at an abortion-rights rally outside the Supreme Court. "They're taking away fundamental rights," Schumer said as the justices considered the constitutionality of a Louisiana law requiring that physicians who perform abortions have admitting privileges at local hospitals. Turning to point at the Supreme Court building, he angrily added: "I want to tell you, [Justice Neil] Gorsuch, I want to tell you, [Justice Brett] Kavanaugh, you have released the whirlwind, and you will pay the price! You won't know what hit you if you go forward with these awful decisions."
Roberts thought that Schumer, like Trump, had crossed a line. "Justices know that criticism comes with the territory," he said, "but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter."
In both of those cases, Roberts thought it was important to remind the public that the judicial branch plays a crucial role in our system of government by ensuring that the other two branches are complying with statutory and constitutional requirements. Reflexive threats of impeachment against judges who issue decisions that politicians do not like implicate the same concern. No matter what you think of any particular ruling, letting politicians do whatever they want, as long as they can claim that voters support it, would replace constitutional democracy with, at best, tyranny of the majority. More realistically, it would subject all Americans to the unbridled whims of any demagogue who manages to gain power.
The post Trump's Judge Bashing Provokes a Rebuke From Chief Justice John Roberts (Again) appeared first on Reason.com.
