Should Chief Justice Roberts Be Impeached?

by Richard Epstein

According to Rep. Peter DeFazio (D., Ore.), he should be:

[I mean, the Supreme Court has done a tremendous disservice to the United States of America. They have done more to undermine our democracy with their Citizens United decision than all of the Republican operatives in the world in this campaign. They’ve opened the floodgates, and personally, I’m investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn’t be a judicial activist, and he wouldn’t overturn precedents.

Wonders never cease. I am quite aware of the enormous controversy over Citizens United, and am happy to report that if Justice Roberts should lose his position on the bench through impeachment, then I should be at risk for my own teaching position, because I have already written in defense of the majority in Citizens United.

In every way, Rep. Peter DeFazio looks like a crank. He falls over a constitutional cliff. But as cranks often rule the media, something should be said about his astonishing argument. So let me mention two key points. One concerns the role of judges as umpires. The second concerns Citizens United itself.

First, there are serious complications with Justice Roberts’s stated view that judges are like umpires who call balls and strikes, but who don’t make up the rules. The key point here is that judges are not just umpires, but they have all sorts of other functions as well. There are some questions that admit to the precise definition of a ball and a strike, and where the rule has that feature, no one wants judges to call cases contrary to the clear logic of a statute.

In the nature of things, alas, much of law does not involve these boundary-type questions, but a serious and sustained judgment about the soundness of certain approaches relative to others. Lawyers have a love/hate relationship with so-called balancing tests.

They love to denounce them on Monday only to use them on Tuesday. But it is a fair question to ask how one can avoid balancing if the choice is between allowing the freedom to speak about public affairs on the one side or providing state secrets to our enemies on the other. And so too with corporate speech, the hard question is whether there is any evidence of serious political abuse that justifies stopping someone from broadcasting a political attack video unless they run some hoops set up by some bipartisan (a deeply suspicious moniker) Campaign Reform Act. But as far as I can see, you can’t impeach Justice Roberts for announcing in advance an approach to judicial interpretation that no human being can follow.

Second, on Citizens United, the decision is in fact correct. There are all sorts of good reasons why corporations do not want to engage in electioneering before an election. They have to face the wrath of their customers and their shareholders if they take positions that seem unrelated to the core mission of the business. No actions need be taken against them to feel the heat. The loss of good will can easily translate into a decline in stock prices that are large enough to matter.

Some evidence of this point comes from asking who filed in support of Citizens United. Answer: it was not the corporations, any of them. Rather it was the Chamber of Commerce and the labor unions, who really are in this business big time. And well they should be given the huge amount of discretion that is lodged in political figures. The one uneasy position here is whether they need to disclose their donor base. In principle, we have a long position of anonymous speech so no one quite knows the right answer. The Supreme Court for the moment has no categorical ban on disclosure legislation, so the issue is still alive.

At this point, therefore, the best thing to do with Representative DeFazio is to ignore him. After all, there is no grounds to impeach him from public office for the silly statements that he makes. Stupidity does not count as a high crime or misdemeanor.