Is judicial independence unlimited?

Why can’t a judge be impeached for judicial acts? What else is it worth impeaching him for?

As noted below, I think the threat of mass impeachment of judges for not issuing appropriately right-wing rulings is both bad constitutional practice and likely a political disaster for the Republicans.

On the other hand, I can’t fathom Chief Justice Rehnquist’s assertion that “a judge’s judicial acts may not serve as a basis for impeachment.” Surely that can’t be right.

Judicial tyranny isn’t what’s happening in the United States right now, but surely it’s a theoretical possibility. If a majority of the Supreme Court were to rule that the phrase “natural born citizen” in the list of qualifications for President in Article II should be read to make all non-Christians ineligible, would there in fact be no recourse? That can’t be right.

Judges, for the good and sufficient reasons laid out by Hamilton in Federalist #78, are to serve “on good behavior.” In that context, “good behavior” can’t mean merely keeping their flies zipped, can it? Why allow the Congress to impeach judges — who are not, after all made exempt from oridinary criminal prosecution — unless to check their “bad behavior” — “malconduct,” as Hamilton calls it in Federalist #79as judges?

Clearly, a President could be impeached for a gross breach of the Constitution — say, purporting to dissolve the Congress without its consent, and ordering executive branch officials lock the Senators and Representatives out of the Capitol — even if the act involved did not breach any criminal statute. If a President, why not a judge?

It seems to me both accurate and politically potent to argue that there is no current threat of judicial tyranny, and that the current Republican attempts to interfere with judicial independence are therefore both unnecessary and contrary to the principles of constitutional government. As Hamilton said in Federalist #78:

… independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

(No doubt Messrs. DeLay, Coburn, Cornyn, et al. will recognize themselves as the “designing men” in the passage above; if not, their constitutents may do the recognizing for them.)

But that argument, it seems to me, only loses force if it is conflated with the implausible claim that the independence of the judiciary means that the Framers, contrary to their principles, left the judicial power entirely unchecked.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: