The Court Can Do No Wrong 

Justice Anthony Kennedy has a habit of answering questions nobody has asked, and answering them badly. Faced with a legal issue, he is apt to get all metaphysical, in the manner of a college student at an all-night bull session, and with similarly sophomoric vanity.

In his majority opinion finding a Texas sodomy law unconstitutional, he quoted, without embarrassment, indeed with evident pride, one of his own effusions of a decade ago: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Deep, man. Real deep. I can dig it. But what has it got to do with sodomy laws, or anything else? In his dissent, Justice Antonin Scalia unkindly punctured this as Kennedy’s “famed sweet-mystery-of-life passage.” No matter. Kennedy thinks it’s a classic of jurisprudence, and no doubt he’ll keep quoting it. After all, who’s going to flunk him?

Conservatives were outraged by the Court’s ruling, and some want to amend the U.S. Constitution to define marriage before the Court gets funny ideas about same-sex unions. But why? The problem isn’t the Constitution. It’s the Court.

There is a simpler remedy than changing the Constitution every time the Court usurps power or, worse, changing it to prevent possible future usurpations. It’s called impeachment.

Though two U.S. presidents have been impeached (and Richard Nixon resigned just in time to escape that humiliation), not a single justice of the U.S. Supreme Court has ever faced impeachment. It’s time to start thinking about it.

In Federalist No. 69, Alexander Hamilton explained the purpose of impeachment. It has to do with the difference between a monarchy and a republic. In England, the legal principle had been that “the king can do no wrong.” He was above the people and not responsible to them. Kingship was “perpetual and hereditary,” the king’s person “sacred and inviolable.” Removing a king was a violent business; in England it had meant beheading and civil war.

But in the United States, the president would be ultimately chosen by, and answerable to, the people. He would be a mere officeholder for a limited term, charged with upholding the law. If he seriously violated this duty, he could be removed. Peacefully. And impeachment wasn’t reserved for presidents only.

Impeachment is not a criminal proceeding, merely a legal correction to the abuse of power. It shouldn’t be considered an extreme measure, like regicide. Every public official should have to worry about it, just as elected officials should have to worry about losing their offices in the next election.

Since justices of the Court are unelected and can’t be voted out, it’s especially important that they should take the prospect of impeachment seriously, as a real and not merely hypothetical possibility. We have no other peaceful defense against them.

Yet until now, the Court has been granted immunity from this remedy. It enjoys what no public official should ever enjoy: virtually absolute job security for life. It can defy the Constitution, tradition, and public opinion with impunity. It can bloviate about the meaning of existence and call it constitutional law.

Kennedy’s casual arrogance is the natural result of allowing the judiciary to escape constitutional discipline. In effect, we are living under the unwritten maxim “the Court can do no wrong.” Like the old kings, it’s above the people and not answerable to them. This is contrary to the whole principle of republican government. A president has to fear both the electorate and (though far too rarely) impeachment; the Court has to fear neither.

If anything should be grounds for impeaching a justice of the Court, it should be a record of usurping powers the Constitution doesn’t assign to the Federal Government, but reserves to the states. This is exactly what the Court did in the Texas sodomy case. The Texas law may have been a bad one, but that was for Texas to decide, not the Court.

Any attempt to impeach members of the Court at this point would fail. That doesn’t mean that it shouldn’t be done. Tyranny depends on a supine public, and if the American public would even begin talking about impeachment, the Court might get what it needs most: a good scare.

Joseph Sobran