The judicial establishment is angry. President Trump has called for the impeachment and removal of Judge James Boasberg, who halted the administration’s deportation of Venezuelan gang members.
J. Michael Luttig, a former federal judge and a “Never-Trumper,” warned that the president’s complaints about the judiciary threaten a constitutional crisis.
Chief Justice John Roberts added his voice with a lecture on the appellate process: “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.”
Most Americans nod in agreement, remembering their high school civics lessons on how judges should be insulated from popular opinion and political pressure. But is this correct? Should unelected federal officials exercising immense power be immune from censure?
The anti-federalists, critics of the proposed Constitution of 1787, saw danger in total judicial independence. Writing in the New York Journal, the anti-federalist known as Brutus protested that federal judges “are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
Brutus knew that judicial service during good behavior was seen as essential to British liberty. Good behavior, a very low bar, means proper and peaceable conduct expected of law-abiding citizens.
Indeed, the colonists in the Declaration of Independence complained that colonial judges served at the pleasure of the king rather than during good behavior.
But the American situation after 1776 was different. In Britain, a hereditary monarch headed the executive branch and was considered the fount of all justice.
Judges were executive branch agents. James I, for example, instructed royal judges to refrain from deciding cases dealing with the king’s prerogative until they had consulted with him or his advisors.
In addition, the House of Lords — a branch of the British parliament — served as the highest court in the land. If a judge issued an erroneous opinion, this could be appealed to the Lords, who could overturn or correct the decision.
Brutus reminded his readers that the proposed Constitution provided for no appeal to the legislature. Unelected judges serving for good behavior would, as a practical matter, have the final say on the Constitution, statutes and most disputes.
Brutus explained that under the principles of the American Revolution, all government officers were agents of the people. Agency is a fiduciary relationship in which the principal appoints an agent to conduct designated business. The agent is subject to the principal’s ultimate control and must account for his actions.
The principal, then, is superior to the agent. Brutus questioned whether the people could really be superior to their agents in the judiciary under the structure of the federal Constitution.
Impeachment, despite Roberts’s contention, is the only mechanism whereby the people’s agents in the judiciary can be held accountable.
Since 1805, in the words of Thomas ...
