The Case for Impeaching the Chief Justice

Mark Graber

The Constitution provides that justices "shall hold their Offices during good Behavior." Most of us would agree that a justice who fails to attend court sessions, writes far less than his fair share of opinions, and writes pretty mediocre opinions at that is not exhibiting good Behavior. "Shockingly," however, no movement exists to impeach Chief Justice William Rehnquist.

Rehnquist himself insists that cancer is no excuse for not performing duties. In Board of Trustees of the University of Alabama v. Garrett, Garrett was fired because her supervisor insisted that a recovering cancer patient could not be a nurse. When Garrett sued under the Americans with Diabilities Act of 1990, the Supreme Court, with the Chief Justice writing the main opinion, ruled that Congress had no power under the Fourteenth Amendment to prevent cancer patients from being fired and that any lawsuit against a state based on the commerce powers of Congress was barred by state sovereignty. All the evidence indicates that at the time she was fired, Garrett was performing her duties to a far greater degree that Rehnquist performed his this year, or is likely to perform his in the future.

Perhaps it stretches the constitution to claim that good behavior includes the duty to show up for work and perform one's fair share of job related duties, though clearly in the private employment section, Rehnquist does not believe this to be the case. On the other hand, it seems even more a stretch to claim that the constitution forbids a state employee from suing a state in federal or state court, given that the 11th Amendment merely bars citizens from one state from suing another state in federal court.

Justice Robert Jackson once observed that "there is no more practical guaranty against arbitrary and unreasonable government that to require that the principles of law which officials would impose upon a minority must be imposed more generally." That William Rehnquist remains Chief Justice makes a mockery of this principle. A decent society, I believe, would not allow people to be fired for having cancer, even when they are Chief Justice. If, however, the 14th Amendment does not permit Congress to pass laws allowing private cancer patients to keep their jobs, no good reason exists for interpreting "good behavior" in Article III as allowing a Chief Justice with cancer to keep his job.

ADDENDUM: In response to a valuable private email conversation with Orin Kerr, I should emphasize that the critical issue in the above claim is whether Rehnquist believes firing cancer patients is constitutionally reasonable under the 14th Amendment, and the implications of that belief for the proper interpretation of good behavior under Article III (and whether Rehnquist adopted the sort of creative constitutional logics in supporting state sovereignty that he frequently disparages when used by others to support individual rights). I read pp. 966-67 of Garrett as clearly supporting my view. Commenters are, of course, encouraged to read the opinion and reach their conclusions.
Posted 9:11 AM by Mark Graber [link]