In Partial Defense of David Dow: Maybe Don’t Impeach the Five

On the Daily Beast, Professor David Dow — a brilliant man and storied advocate against the death penalty — argues that President Obama should consider impeaching Supreme Court justices, if the Court votes to invalidate the individual mandate. I respectfully disagree: for one, even if Thomas Jefferson considered the same, Jefferson was a bit of a wild card when it came to the Court. His many letters against Marbury v. Madison are regularly quoted by conservatives as proof that judicial review is contrary to the Constitution, even though his  clearest expression of this sentiment was motivated by partisanship, and also clearly wrong (Marbury‘s explication of judicial review is holding, not dicta). And, impeaching a justice for voting the wrong way would be a more blatant and extreme assault on the Court’s legitimacy than the right has ever even contemplated. Justice O’Connor is right on this point. To the extent that we want to pick a fight with the Court at all, we should limit the fight to the justices, not the institution. Impeachment implicates both.

Separately, though, Professor Dow’s explanation of the mandate’s constitutionality is (especially by incorporating Akhil Amar) one of the best I’ve read yet, and clearly prevails over his detractor, a writer who actually refers to an article by Ann Coulter as “eye-opening.” Indeed. Oh, and, full disclosure — I was once took a class taught by Professor Dow, an equal protection seminar at Rice in 2005. The man is a genius, and a rough grader. He gave me a B+, I think, and I was happy to get it.

Image stolen from here.

Library Voices, Traveller’s Digest


  1. Whilst impeachment is going a bit far, 5-4 down partisan lines on any controversal decision isn’t exactly doing the court any favours and is doing a pretty good job of undermining itself. How seriously can you take any decision it makes when you can just look at the Democrats and Republicans position on any issue and know which way it will go? You might as well impeach everyone but Kennedy and leave the rest of the bench empty as he is the only one making a decision anymore.

  2. Well, Jefferson didn’t just consider it, he did actually try, and we all know how well that went. So that seems most of all like a cautionary tale to me.

    I don’t really see how striking down a law would even be considered “not good behavior”, anyway. I mean, you can disagree with them, but “emphatically the province” and all that.

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