Patterico's Pontifications


Moonbattery on Citizens United Reaches New Level: Impeach Justice Roberts!

Filed under: General — Aaron Worthing @ 10:09 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

I’m sorry, that is Chief Justice Roberts.  Barbara Boxer informs me that he has worked very hard for his position.

Anyway, via Volokh we learn today that Representative Peter DeFazio (D-ork) is considering articles of impeachment against Justice Roberts over Citizens United.  They have cited two causes of action (so far).  The first (particularly in this audio clip) is that Roberts lied to Congress in his confirmation hearings saying he would respect precedent.  The second is that supposedly it was improper to hear the constitutional issue in the case at all.

The weakness of the claims are amply demonstrated by the Huffington Post’s attempt to prove it.  First, they pull out this quote:

In his 2005 confirmation hearings, Roberts famously said, “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”

According to DeFazio, Roberts hasn’t stood by his own doctrine.

Which is bull.  All Roberts said was he would follow the law.  Given that the Constitution is a law, too, there is nothing inconsistent with striking McCain-Feingold on Constitutional grounds.  In fact most supporters of the decision consider it to be a victory for the law of the Constitution.  And indeed, Roberts made it fairly clear in his testimony that the principle of stare decisis, which is law latin shorthand for the ideal of respecting precedent, is weakened when you were talking about the meaning of the Constitution:

The court has frequently explained that stare decisis is strongest when you are dealing with a statutory decision. The theory is a very straightforward one, that if the court gets it wrong, Congress can fix it.

And the Constitution, the court has explained, is different. Obviously, short of amendment, only the court can fix the [C]onstitutional precedents.

The implication is that 1) he believes the principle is strong (but not absolute) when talking about cases merely involving the interpretation of a statute, and 2) when talking about the Constitution, precedent less likely to be followed.  No person with more than two brain cells to rub together would have left those hearings thinking that Roberts promised to follow the precedents come Hell or high water.

Indeed, it would have been unethical for Roberts to have done so, because it would have meant that he was unwilling to consider the arguments for both sides.  For instance, there is a Supreme Court precedent that states do not have to recognize gay marriage.  So does that mean that Roberts has pledged to refuse to consider overturning this precedent no matter what?  Something tells me most liberals would welcome a willingness on the Court’s part to overturn that precedent.

But there is a bonus stupidity, here.  Even if Roberts promised never, ever to overturn precedent, and then did, it still isn’t lying to congress.  It is simply changing your mind.  As a matter of law, if you promise to do something and do not do it, it is not a lie—unless you can show that when that person made that promise that they never intended on keeping it.  Otherwise every breach of contract case would also be a fraud case.  So DeFazio would have to prove that Roberts had no intention of keeping that promise (which he didn’t make anyway).  Good luck with that.

The other argument is that somehow the question of the constitutionality of the law shouldn’t have been before the court.  To prove it, he cites a line from Justice Stevens’ dissent, where he said:

“This procedure is unusual and inadvisable for a court,” Stevens said of the process. “Our colleagues’ suggestion that ‘we are asked to reconsider Austin and, in effect, McConnell,” ante, at 1, would be more accurate if rephrased to state that ‘we have asked ourselves’ to reconsider those cases.”

That is a true and correct quote, but notice it what it doesn’t say.  It doesn’t say it is illegal.  Indeed, saying it is unusual suggests there is a history of this occurring, and if you look “under the hood” of even the cases Stevens cites, you realize it legal to do it and it is done.

Now I am pretty sure that cooler heads will prevail if DeFazio actually pushes for this impeachment.  But coming up in 8 days, the people of DeFazio’s district in Oregon will be considering whether to continue employing him as their representative.  Right now his opponent is down by 6 points.  This attack on the independence of the judiciary, for upholding the first amendment, should factor into the decision of Oregon’s voters.

[Posted and authored by Aaron Worthing.]

31 Responses to “Moonbattery on Citizens United Reaches New Level: Impeach Justice Roberts!”

  1. …stare decisis means: “What’s mine is mine and what’s yours is negotiable.

    -Ann Coulter

    Lazarus Long (5720c3)

  2. Impeaching judges because you disagree with their decisions is a precedent the Congress wisely declined to set in the first decade of the nineteenth century, and it’s one we shouldn’t set now.

    It might provide some short-term benefit to liberals (although probably not, given the dynamics of the Senate), but it would also provide long-term harm to the stability of the republic.

    aphrael (9802d6)

  3. It’s a stupid (and dangerous) undertaking no matter who it comes from.

    Kman (d25c82)

  4. As some one said at volokh, Why are liberals so wound up about denying free speech rights in citizens united, but applaud the free speech rights of the New York times – of which a large chunk is owned by a mexican national.

    Joe (6120a4)

  5. Why are liberals so wound up about denying free speech rights in citizens united, but applaud the free speech rights of the New York times…

    It’s because we don’t think spending money is “speech”. And even if it is, we don’t think corporations and unions are what the framers had in mind when they protected free speech.

    The New York Times, however, is press, and there is freedom of the press in the First Amendment.

    Kman (d25c82)

  6. Kman,

    I appreciate the distinction you’re making, and used to believe there was a significant distinction between regulating speech and regulating the spending of money, or between regulating the speech of individual human beings and regulating the speech of collective entities such as corporations and labor unions. But even if all you want to protect is the speech of actual human persons, there simply is no getting around the fact that regulating (indeed, oftentimes restricting and prohibiting)the expenditure of money directly and significantly impinges on the ability of individual human beings to be involved in and get their views known in the political world. Similarly, it is much more effective to communicate a political message when you join with others, as all sorts of organizations do, ranging from for-profit companies to non-profit organizations of all sorts. The bottom line is that any law that restricts spending for political speech, or spending by corporate entities, is a law regulating, i.e., limiting and restricting, the speech of individual human beings.

    Tim K (7e41e8)

  7. Kman
    The New York Times may be a member of the press, but so does everyone else who can print, blog, televise, broadcast reports, news, opinions and everything else on their minds and that includes both the unions and corporations.

    Will (b58337)

  8. Will

    indeed, the NYT is a corporation.

    Aaron Worthing (e7d72e)

  9. It’s because we don’t think spending money is “speech”. And even if it is, we don’t think corporations and unions are what the framers had in mind when they protected free speech.

    The New York Times, however, is press, and there is freedom of the press in the First Amendment.

    [Comment by Kman — 10/25/2010 @ 11:45 am]

    Kman, I really doubt “press” in the first amendment relates exclusively to those in news organizations, journals of opinion, or those organizations who own ‘presses’ and use them regularly in their businesses, but also to those persons who decide to engage those who own presses by giving them money to print something for them that they then distribute and publicize.

    Dusty (373650)

  10. As kmart points out, their view of freedom of speech only extends to those that they agree with. You don’t see them whining about foreign money in the SEIU coffers, or the AFL-CIO. They don’t wail and gnashing their teeth about independent expenditures from the unions, like AFSCME, who is essentially doing it with taxpayer money. But the Chamber of Commerce is evil personified.

    JD (c8c1d2)

  11. Note how the Dems tried to exempt their union buddies in the DISCLOSE legislation monstrosity that they were pushing. Also note how little the chattering classes cared about the potential for foreign dollars entering the system when Barcky’s campaign decided to minimize their online donation security protocols, or when he was having campaign speeches in Germany.

    JD (c8c1d2)

  12. t denying free speech rights in citizens united

    Makes you wonder why anyone passed those laws at all….

    I mean, if the someone wondering that forgot all about Standard Oil and Watergate, and the host of times it becomes apparent that the difference between a corporation and a person was a) incalculable economic ability to spend other people’s money for a partisan, obfuscating ends and b) you know, I’m a person and Exxon is not.

    But, once you are able to ignore the exponential degrees in economic power a corporation wields over the individual, then you become the jack-ass who is the Chief Justice of Supreme Court. A man who has never seen the case where an institution shouldn’t be able to quash a peasant, errr citizen.

    He really missed his calling. He would have been a fine Cavalier

    timb (449046)

  13. Dusty

    It helps to think of other examples of expression at the time of the founding. To read the press clause as limited to the institutional press would exclude thomas paine from protection under the constitution. nuff said.

    and the claim that money is not speech is particularly silly on the facts in citizens united. sure, citizens united were restrained in their ability to spend. they were told they could not spend to buy ads that say certain things. what does speech have to do with that? /sarcasm

    whenever liberals talk about that case, the last thing they talk about is what actually happened in that case. it was indefensible.


    The democratic party has much more money than any person. can i ban the dem party from speaking? indeed, the dems wanted to say that citizens united was not entitled to any constitutional protection at all. so according to them, the government could ban the Democratic party from speaking, but not the republicans. which seems a little wrong…

    [edited slightly for clarity]

    Aaron Worthing (e7d72e)

  14. Tim, I hope before you finish law school, if you ever do, you learn a bit more about corporations. I once had a good business lawyer explain to me about corporations. That was soon after professional corporations were finally permitted.

    He said, “Corporations are treated as persons in the law. They can make contracts, buy and sell property and do almost everything that a real person can do. There is only one thing a corporation cannot do. It cannot go to jail. The officers of the corporation do that. I hope you never forget that.”

    Mike K (568408)

  15. This (impeachment of CJ Roberts) is just an election ploy by a Dem Congressman who is polling less than 50% when he has never received less than 60% of the vote, in a District that he needs to gin-up the Left vote in the northern counties to overcome the very conservative proclivities of the southern half, where one can find a strong streak of secessionary sentiment.

    AD-RtR/OS! (61e7e4)

  16. Aw. I kind of like it when the liberals play wingnut get all worked up about impeaching judges.

    imdw (c41bd3)

  17. Kmart- do you think that your LOOK BUNNIES link is in any way comparable? A link to a random group that I suspect most have never heard of, as opposed to a sitting congresscritter in the majority? Clearly exactly the same.

    JD (c8c1d2)

  18. But, once you are able to ignore the exponential degrees in economic power a corporation wields over the individual

    The New York Times has much more economic power than I’ll ever have. Does that mean The Times should not be allowed to print opinions?

    I’ll side with those who oppose government-imposed restraint on political opinions. You can have the other side.

    Some chump (4c6c0c)

  19. And are we surprised by the opposition’s attacks? If we are then we are truly ignorant of the stakes, and the war that is really going on.

    This isn’t some comment flame-throwing festival. This is your future.

    It may come down to how many rounds you have left, or how many friends you can believe in.

    Frank M (dc2516)

  20. @18…
    I entrust my Soul to God, and my Life to John Moses Browning!

    AD-RtR/OS! (61e7e4)

  21. George Soros also has several orders of magnitude more money to spend than I do on political speech… and more than many corporations. Let’s silence him for unfair advantage. Same with Michael Bloomberg. Ditto Warren Buffett.

    (Libs are all about making it fair, right?)

    Silencing those with more money than I is fun.

    quasimodo (4af144)

  22. Pelosi is saying, with a straight bottom face, that the Dems were doing just great in this election cycle until the evil shadowy corporations started spending their evil money expressing their evil thoughts while exercising their free speech right that they should not have. Add this to the growing list of BS excuses they are already trotting out for the waxing they will take on 2 NOV.

    JD (c8c1d2)

  23. Quasimodo – Soros is buying him some NPR. He is good and pure. All of his speech is worthy of free speech protection. Starting to see a trend here. It is the content of the speech that really bothers them. And that should bother anyone.

    JD (c8c1d2)

  24. that’s the key … what speech is worthy of protection and what (whose?) speech is not.

    quasimodo (4af144)

  25. It is the content of the speech that really bothers them

    plus, the distribution of that speech.

    If Juan Williams had been on some 2W radio station in upstate NY, or a public access channel on “Smokey Mountain Cablevision”, no one would care; but, he was on the most watched cable news network in America, and on the highest rated show on that network, where more people every week tune in to watch Bill O’Reilly than MadCow, Chrissie, and Olberdouche combined, that got their thongs in a twist.

    AD-RtR/OS! (61e7e4)

  26. Comment by Aaron Worthing — 10/25/2010 @ 12:45 pm

    I agree. I wrote in the way I did because I found it rather stupefying that Kman’s understanding of “freedom of the press” is confined to those he calls the “press” when the term was a reference to the use of printing presses to publish for distribution anything people wanted, and considering that such printing presses were few and far between, most people had to use “money” to get their pamphlets printed by those who owned them.

    Dusty (373650)

  27. The citizen’s united issue seems pretty easy to take care of. Just require that corporate speech have some form of regular approvals from shareholders, and that those shareholdings have some forms of disclosures.

    Lots of Americans have significant 401k’s and they should have some say over how their money is being used for corporate speech, and some way to find out whether it is.

    imdw (150cd7)

  28. It would be great if this backfired on DeFazio.

    His opponent, Art Robinson is a true conservative and a brilliant, innovative thinker.

    Hank Archer (17792e)

  29. This is just plain disgusting. Not much more I can say but that the left never stops.

    Dustin (b54cdc)

  30. I wonder if DeFazio wanted to impeach anyone for overruling Bowers v. Hardwick.

    Or the dissenters in McDonald v. Chicago.

    The New York Times, however, is press, and there is freedom of the press in the First Amendment.

    What makes the New York Times the press?

    Michael Ejercito (249c90)

  31. “This attack on the independence of the judiciary, for upholding the first amendment, should factor into the decision of Oregon’s voters.”

    It should but probably won’t. Oregon is a fairly liberal state. The people who live in rural areas are relatively conservative but are unfortunately out numbered by the liberals who live in the cities.

    Jay H Curtis (8f6541)

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