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This is the second in a series of ten essays revisiting my book, Giving Up Is Unforgivable: A Manual For Keeping A Democracy, which was released a year ago. I wrote about my goals for this series of essays here. If you’re just finding Civil Discourse through The Republic, Revisited essays, I hope you’ll subscribe—it’s free—and read along with us.
The answer to the question in the headline of this piece should be no. It’s not even a close call. But that hasn’t stopped this administration, and specifically this president, from making life difficult for the federal judiciary when it rules against him. Even the wing of the Supreme Court that typically sides with him isn’t immune when its decisions cut against him. Donald Trump has not hesitated to criticize the justices when that happens, as he did with decisions involving voting by mail, birthright citizenship, and tariffs.
Thank goodness for the courts. I can’t tell you how many times I’ve thought that in the last year. But mostly, I’ve thought it about district judges who, regardless of the president who appointed them, have stood up for the rule of law. The judges who, despite death threats, like the one Judge Anna Reyes, who is overseeing the East Potomac Golf Course case, recently acknowledged receiving, just keep doing their jobs.
Judicial independence is at the heart of American democracy. It’s what’s keeping us afloat right now.
I think it was worth going back to my book, Giving Up Is Unforgivable: A Manual For Keeping A Democracy, and revisiting what I wrote about the origins of judicial independence as the midterm elections draw close and the Supreme Court gets into the 2026–27 term. So much depends on whether the courts will hold, as they did after the 2020 election when Donald Trump wanted to undo his loss.
And it’s especially poignant today, following Justice Elena Kagan’s comments to Catholic University law students yesterday, in which she criticized the Court for damaging democracy, creating a Wild West for money in politics, and eviscerating the Voting Rights Act. Perhaps the justices would do well to revisit the material we read together tonight. Justice Kagan seems to think they need a refresher. One hopes they’ve learned a lesson from the way their brethren and sistren on the lower courts have been standing up for democracy.
The judiciary is supposed to act as a check on the executive and legislative branches. We don’t criticize judges, let alone impeach them, because we don’t like their decisions.
Here’s this week’s excerpt from the book. I hope you’ll leave a comment and let me know how it hits you today after you finish this post.
“With the principle firmly established that the Supreme Court can tell a president no when his actions exceed the scope of his constitutional power, our final lesson comes not from a court case but from an impeachment: that of Justice Samuel Chase in 1804, a year after Marbury v. Madison was decided.
The Constitution sets forth some limits regarding the service of federal judges. Article III provides that they are to remain on the bench as long as they engage in “good behavior” and that their salary cannot be reduced while in office. But Article I includes judges among the cohort of civil officers who can be impeached by the House for “high crimes and misdemeanors” and removed from office if the Senate convicts them on those charges. That ambiguous phrase, “high crimes and misdemeanors,” means more than just crimes that are on the books, but how far it extends is unclear. Constitutional law scholar Laurence Tribe wrote in 2018 that it includes grave abuses of power and betrayals of the public trust, “intentional, evil deeds” that “drastically subvert the Constitution and involve an unforgivable abuse of the presidency”—even if they fall short of a technical violation of the law.
Judges could clearly be removed for criminal and other serious misconduct. But could they be impeached for their legal decisions, if someone with political power objected to them?
We are back to Thomas Jefferson’s presidency. Jefferson wanted the House of Representatives to impeach Chief Justice Chase, and it most definitely had to do with the politics of the day. The official Senate account of the proceedings refers to Chase as “a staunch Federalist with a volcanic personality.” One of Chase’s duties as a judge was to charge new grand juries, organizing them for their term of service and explaining the procedure to them. Jefferson, the leader of the Democratic Republican Party, became angry when he learned that Chase had charged a grand jury in a way Jefferson believed had an unfair political slant. He wrote to the House and asked them to impeach.
…
The House impeached Chase, but as we know from our modern-day experience, articles of impeachment, like an indictment, are merely charges brought against someone accused of misconduct. That person is still entitled to a trial, and in Chase’s case, the Senate did not vote to convict, even though Jefferson’s Democratic Republican Party held a supermajority and the Senate was presided over by Jefferson’s vice president, Aaron Burr, who, as Chief Justice William Rehnquist notes, was “a fugitive from justice at the time, having killed Alexander Hamilton in a duel at Weehawken, New Jersey, the preceding summer.”
It almost makes politics in 2025 look tame.
The failed impeachment stood for an important proposition. Rehnquist put it like this: The fact that a political heavyweight doesn’t like a judge’s decision should not be a basis for removing judges from the bench. We have learned that the Constitution requires judges to decide what the law is. It stands to reason that they should not be impeached for doing that job. Judges do get impeached from time to time. But those situations almost always involve outright criminal behavior, not a complaint from someone who doesn’t like the way they ruled in a particular case.
That’s the point of having an independent judiciary. It maintains its independence from political forces that seek to influence it for their own advantage, so it can preserve the level playing field that allows our politics to play out as constitutionally intended, at the will of the people.
Any would-be autocrat has to consider how to avoid, even derail, judicial review. An independent branch of government that can block their authoritarian efforts to seize more and more power is a threat to their chance of success. Indeed, judicial review is one of our most essential aids in challenging times, so long as judges live up to the role assigned to them.
As for the rest of us, people who have had the good fortune to be able to take the existence of democracy in America for granted for many years, we have to understand that time has passed. Understanding how government works and how it is supposed to work is essential to combating those who would fuel the fire that boils the water that kills the frogs.”
We end, again, with the frogs. And yet, it’s so apropos. Democracy really does die in darkness, and something I hope we’re all doing is taking our reading and discussions here at Civil Discourse out into our daily lives and sharing information about what’s happening with others who don’t have the opportunity to be as well informed. The truth is not dead. It’s up to us to help people find the information they need to figure out what’s going on for themselves.
When the president and his cronies attack the independence of the judiciary, our democracy is worse off for it. Just look at this incident on Twitter shortly after Trump returned to office. The attacks have been unrelenting since then. Regardless of party, this should be condemned.
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We desperately need an independent judiciary. Judges shouldn’t face threats, let alone intimidation, from the executive or legislative branches. They too have a constitutionally assigned role as a check on the other branches. Congress and the president may not always like it, but then, isn’t that the point? Because an independent judiciary isn’t just about protecting judges. It’s about protecting all of us.
We’re in this together,
Joyce
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