US Chief Justice was right to chastise Trump call for impeaching judges

By Stephen L Carter

It’s a shame that Chief Justice John Roberts had to take the extraordinary step of chiding President Donald Trump and his cheerleaders for their demands that federal judges who stand in the way of the administration’s decrees be impeached. No, that sort of behavior isn’t new; the insistence by politicians that judges stand aside and let them have their way has been a depressing feature of our political landscape since the beginning. But in the current moment, with Trump issuing so many orders, no small number of which may be illegal, it’s particularly important that we observe the forms of law.

Currently in Trump’s crosshairs is James Boasberg, the chief judge of the federal district court in Washington. The president is upset because the judge had the temerity to instruct the administration to cease the mass deportation of alleged Venezuelan gang members until he decided on the legality of the program. Courts do this all the time — ordering parties in effect to stand still pending argument and decision. But on this occasion, Trump took to social media, calling Boasberg a “Radical Left Lunatic” and “crooked” and demanding his removal.

That’s outrageous and, from the leader of the free world, inexcusable. The holder of the highest elective office in the land owes the American people the highest regard for our fading democratic norms.Roberts’s response was straightforward and forceful:

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

Has this sort of thing occurred in the past? Of course, it has, far more often than we might care to admit. Early in the 19th century, believing Justice Samuel Chase to have been biased against them in key cases, the Jeffersonians went after him with a vengeance. (Chase survived his impeachment trial by the narrowest margin.) During the Reconstruction, members of Congress threatened to impeach Supreme Court justices who were considered hostile to their program.

Instances abound. The enemies of the Warren Court made no secret that their enmity stemmed from the justices’ decisions. Online you can still buy colorful “Impeach Earl Warren” buttons dating back to the era. During the 1960s, an effort to impeach Justice William Douglas picked up sufficient steam that some predicted might succeed.

Prefer a more recent example? Here’s the New York Times in March of 1996, describing President Bill Clinton’s response to a decision by federal Judge Herbert Baer to suppress evidence in a major drug case:

“The White House put a Federal judge on public notice today that if he did not reverse a widely criticized decision throwing out drug evidence, the President might ask for his resignation.”

Jon Newman, then chief judge of the US Court of Appeals for the Second Circuit, fired back that the criticism reflected “extraordinary intimidation.” By that time, Senator Robert Dole, Clinton’s opponent-to-be in the approaching presidential election, had called for Baer’s impeachment and removal. Newman had harsh words for Dole too: “A ruling in a contested case cannot remotely be considered a ground for impeachment.”

Examples go on and on. What they have in common is the realization by politicians and activists that judges are cheap and easy targets. But when the criticisms suggest punishment, the rule of law begins to flail. Since the Trump administration began ramping up its rhetoric, federal judges have faced rising levels of reported threats.

Small wonder the chief justice felt compelled to speak up. But in taking on Trump, Roberts isn’t taking sides. He’s trying to protect the judicial branch against political assault, just as he did in 2020 after then-Senate Majority Leader Charles Schumer launched his dreadful headline-grabbing attack on two justices of the Supreme Court: “You have released the whirlwind, and you will pay the price.” Roberts replied, correctly, that those at “the highest levels of government” had no business threatening judges. As a matter of fact, Trump, then in his first term, also weighed in: “There can be few things worse in a civilized, law abiding nation, than a United States Senator openly, and for all to see and hear, threatening the Supreme Court or its Justices.”

Exactly. Perhaps Trump II should read Trump I.

No, judges shouldn’t be free from criticism, and sometimes the criticism will be harsh. That’s life in the rough and tumble of government affairs. But there’s a world of difference between an online activist calling a judge a nasty name and the President of the United States calling for the judge to be removed from office. Only the second violates democratic norms.

The bipartisan National Commission on Judicial Discipline and Removal, on which I was privileged to serve, addressed this issue in its 1993 final report, writing: “[F]ederal judges should not be impeached for judicial decision-making even if the decision is an erroneous one.”

Let’s not forget that what keeps norms alive is consensus. The more we ignore democratic norms, the weaker they become. I’ve written before about the way those norms of democracy have been threatened in recent years by the left’s assault on the legitimacy of the Supreme Court. But the right has been laboring in those fields a lot longer. And the recklessness with which the labor is being done by the Trump administration and its supporters — yes, some backbencher has filed actual articles of impeachment against Judge Boasberg — is without parallel in our recent history.

The norms matter particularly at this moment because the administration’s flurry of sweeping orders has been met by a flurry of lawsuits. Maybe most of what the administration is attempting will survive judicial review. Maybe not. The way we find out is by trying the cases. That takes time. Impatience with the pace of law is a commonality of our history, but is, almost always, the enemy of democracy.