Shannen: I don’t think that the idea that judges can licitly be impeached for exceeding their constitutional authority is “madness” (and have alluded to that same Hamilton passage to make the same point). You rightly suggest that whether impeachment should be used depends on circumstances. I agree with the NRO editorial that today’s circumstances make a campaign to impeach usurpative judges distinctly unwise. There are, for one thing, too many of them. Impeaching them all is impracticable—notwithstanding the fantasies of a few hotheads who, I gather, have been talking about impeaching a majority of the justices on the Supreme Court. Singling out a few targets would look (and could to some extent be) vindictive. And there are no easy targets. The net effect of politicians’ speaking loosely about impeaching judges will be to make them (and all partisans of conservative views on the judiciary) look nuts, and nobody will be impeached. As the editorial suggested, Hamilton’s remedy makes sense when applied to a few bad apples. But that’s not the situation today, and it’s counterproductive to create the impression that it is.
Incidentally, I have always wondered about Hamilton’s alleged lack of foresight in Federalist 81. Isn’t his deeper point that judicial usurpation cannot occur without the acquiescence of the other branches? I think that’s a plausible reading of his comments—that since the courts cannot command either sword or purse, their power depends ultimately on the esteem in which they are held.