Monday, July 18, 2005

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.


1. Since when would the ADA govern the status of a federal officer or employee with a disability? Would not the Rehabilitation Act, Section 504 (which binds "all government activities", be the relevant measure here?

2. Why should suffering from cancer create a vested job right? Had Lance Armstrong not recovered from testicular cancer, should Team Motorola have been obliged to keep him on as team captain, riding his bike in the Tour de France?

3. While it may be true that we are an indecent society, since when does Congress have unlimited powers under the 14th Amendment to remedy our national lack of decency? I thought we were against Congress legislating on the basis of morality. In fact, I believe that legislating on the basis of morality was expressly rejected in Lawrence v. Texas, one of the holdings of which was that morality can never form a rational basis for public law.

I don't know that this post is mostly, or even probably, facetious, cf. Howard ("Professor Mark Graber has this possibly facetious post"), I do want to know this:

if we take good behavior literally, what would that do to our rich history of dissents? I mean, if we can't call our fellow justices misguided, or scorn decisions by the majority of the Court as "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda" - when only bigots have even identified a homosexual agenda, cf. McSweeney's post at, The Gay Agenda ("7:45 a.m.: Alarm rings. 8:00-8:10 a.m.: Take shower.")...

if we can't do that, what chance does the First Amendment have, of protecting vile and cowardly attacks on our courts from their very highest levels, what chance have we of debasing our deliberative processes, how will we turn reasoning into raving and thinking into bludgeoning?

Fortunately, there will always be those who criticize "cocktail-party textualism," see Johnson v. U.S., 529 U.S. 694, fn. 9 (2000) (Souter, J.: "Justice Scalia's cocktail-party textualism, post, at 4, must yield to the Congress of the United States.") See the Opinion of the Court at Cornell's Legal Information Institute.

"f we can't do that, what chance does the First Amendment have,"

Precious little, I expect, when the strongest defenders of the First Amendment ARE exactly the justices who do that... While the more PC ones are only too glad to see the 1st abolished in the name of "reform".

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