Liberal pundits, journalists, and yes, the president of the United States seem to be in a full-blown panic about the prospects of ObamaCare going down in flames when the Supreme Court rules on HHS v. Florida in two months. Doing so would be the sort of judicial activism that conservatives decry, President Obama complained ludicrously earlier this week.
But have no fear, liberals, for law professor and Daily Beast/Newsweek contributor David R. Dow -- who previously wrote a book defending judicial activism -- has your solution. The Yale-educated lawyer suggests that President Obama's congressional defenders could try something last attempted in 1805: the politically-motivated impeachment of a U.S. Supreme Court justice. Here's how Dow opened his April 3 Daily Beast post:
You think the idea is laughable? Thomas Jefferson disagreed with you.
Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Samuel Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.
The problem with the current court is not merely that there is a good chance it will strike down a clearly constitutional law. The problem is that this decision would be the latest salvo in what seems to be a sustained effort on the part of the Roberts Court to return the country to the Gilded Age.
Dow's post descended into insane pabulum from there, and for a thorough take-down of his illogic, I recommend you read Big Journalism's Ben Shapiro on that here.
Of course, Dow's fundamental problem is that he believes the individual mandate is "clearly constitutional" when in fact it is a clearly unprecedented exercise of federal power that is thinly justified by a contorted reading of the Commerce Clause.
Dow, who is a visiting professor of history at Rice University, says that Jefferson sought Chase's removal because he was "improperly seizing power" and "undermin[ing] the principles of the Constitution." But surely as a historian he must know it's patently laughable to think, for example, that Jefferson, who favored a strict construction of the Constitution, would approve of the ObamaCare individual mandate.
Indeed, Jefferson might arguably favor impeaching justices who voted to find it constitutional, given how egregious an invasion of personal liberty it is. After all, Jefferson was largely suspicious of the federal courts because they had been stocked with Federalists by the previous two administrations, and Federalists had a more expansive view of federal power on a variety of issues in conflict at the time, such as the legitimacy of a congressional charter for a national bank.
What's more, as a practical matter, the notion of impeaching Supreme Court justices for an honest disagreement over interpretation of the Constitution is ludicrous. Even if Obama were to win reelection this November and Democrats riding his coattails were to take back the House, it's highly unlikely Democrats would expand their Senate membership to the 2/3rds supermajority needed to remove a justice in an impeachment trial.
When Jefferson's congressional allies attempted to remove Chase in 1805, Jefferson's Democratic-Republican Party had a supermajority in the upper house, yet failed to come close to the votes needed to secure Chase's removal from the high tribunal.
As he closed his piece, Dow softened his rhetoric a bit, suggesting non-impeachment remedies that liberals could pursue:
We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.
That closing line echoes President Obama's grousing about a "duly constituted" law being overturned by unelected judges.
But as a University of Houston Law Center professor once wisely wrote, "Even the harshest and most vociferous critics of so-called activist judges would not deny that judges must at times say no to the majority."
That professor was none other than Dow, in the pages of his 2009 book, "America's Prophets: How Judicial Activism Makes America Great."