The “I” Word Again

University of Houston law professor David Dow has created a stir with a Daily Beast column suggesting that if the Supreme Court does strike down ObamaCare, the offending Justices (or presumably, at least one of them) should be struck down via impeachment. Here is Dow’s thundering conclusion:

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 hearty populist perennial from a bygone age, term limits for judges! Court-packing! Wow! I’m sure the wingnutosphere will feast on these provocations for days!

While I enjoyed Dow’s piece and agree with much of his analysis (and more, since he doesn’t really dwell on the broader implications of a decision unraveling Commerce Clause precedents), I hope talk of the I-word doesn’t get popular on the Left. The institutional barriers that nearly killed the Affordable Care Act and did in fact water it down are nothing compared to those that inhibit impeachment (much less a constitutional amendment establishing judicial term limits). I don’t know when this hypothetical act would supposedly occur; I guess it would have to be after Democrats regain control of the House and win two-thirds of the Senate (a mathematical impossibility this year since only 10 Republicans seats are up). A second term for the president, with the power to appoint new Justices as openings occur, seems less of a reach.

Assuming, as I do, that Professer Dow fully understands the political realities, it’s not clear what exactly is to be gained by I-talk.

Unless, of course, my very worst fears are realized and the Court strikes down not just ACA but Medicaid and other federal-state programs as offending state sovereignty. Then, hell yes, the I-word, and every other word I could throw at counter-revolutionary Justices would fully enter my vocabulary.

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Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.