OPINION:
Federal judges are not supposed to criticize the president of the United States other than in official opinions, deciding cases in which the president is a party. Supreme Court Justice Ruth Bader Ginsburg apologized in 2016 for responding to a media inquiry by criticizing the presumptive Republican nominee for president, Donald Trump.
She nevertheless criticized Mr. Trump again a short time later, and The New York Times and The Washington Post — hardly pro-Trump media outlets — chastised her for it. The Times said Mr. Trump, who had rebuked Ginsburg for what she had said, was “right” and that Ginsburg should “drop the political punditry and the name-calling.” The Post called Ginsburg’s comments “inappropriate.”
Apparently, Chief Justice John G. Roberts Jr. disagrees. After all, he recently criticized Mr. Trump in the media for the third time. Chief Justice Roberts first criticized Mr. Trump in 2018 when the president said an “Obama judge” often decides cases differently from a Republican judge. Chief Justice Roberts said the political party affiliation of a judge does not matter. With all due respect, the chief justice is incorrect. Indeed, the first question that every litigator asks is, “Who is the judge?” “Obama judges” are different from “Trump judges,” and judges nominated by Vice President Kamala Harris would have been different from Trump judges.
Six years later, on the eve of Mr. Trump’s second inaugural, Chief Justice Roberts raised concerns that the president might “disregard … federal court rulings.” The chief justice called that “dangerous” and said it “must be soundly rejected.” What Chief Justice Roberts failed to mention was that other presidents have disregarded federal court rulings when they felt their constitutional oath mandated that they do so. To mention the most dramatic illustration in American history, Andrew Jackson responded to the Supreme Court’s decision in Worcester v. Georgia by saying, “John Marshall has made his decision. Now let him enforce it.”
Chief Justice Roberts leveled his third public criticism of Mr. Trump earlier this week when he issued a statement in response to the president’s call for a federal judge’s impeachment because of his handling of an Alien and Sedition Act case. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Chief Justice Roberts wrote. “The normal appellate review process exists for that reason.”
Chief Justice Roberts’ most recent criticism of Trump is perhaps the most troubling. The Constitution makes clear that Congress must occasionally exercise the political courage necessary to perform its constitutional duty of impeaching federal judges who seek to rewrite the law rather than interpret it. Alexander Hamilton advised in The Federalist Papers that impeachment is a “complete security” against the “deliberate usurpations” of a federal judge, an unmistakable indication that the framers expected the impeachment power to be invoked more frequently than it has been.
As unsettling as the impeachment process may seem, the Constitution requires that it be sometimes used. President Taft, a great admirer of the Supreme Court and later its chief justice, made the point well in some remarks about the perceived shortcomings of the judiciary of his day: “Make your judges responsible. Impeach them. Impeachment of a judge would be a very healthful thing in these times.”
In these times of judges reading their own politics into the law and imposing them on the rest of us, Taft’s remarks deserve special heed, for it is only if the impeachment power is taken more seriously that the rule of law will survive. Mr. Trump should be applauded for recognizing this central tenet of our constitutional republic.
• Scott Douglas Gerber is the author of, among other books, “A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787” (Oxford University Press).
