DeFazio is doing so based on two points.
Justice Roberts' testimony during the 2005 confirmation hearings and the issues raised by Justice Stevens' Dissenting Opinion on Citizens United v. Federal Election Commission.
In short, Roberts swore not to be an activist Justice and to follow the traditions of the Court. Justice Stevens dissent clearly demonstrates that Roberts did neither.
U.S. Constitution: Article II
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes andMisdemeanors.
Judges .--Article III, Sec. 1, specifically provides judges with ''good behavior'' tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior; it has been assumed that judges are made subject to the impeachment power through being labeled ''civil officers.'' 755 The records in the Convention make this a plausible though not necessary interpretation. 756 And, in fact, twelve of the fifteen impeachments reaching trial in the Senate have been directed at federal judges. 757 So settled apparently is the interpretation that the major arguments, scholarly and political, have concerned the question whether judges, as well as others, are subject to impeachment for conduct which does not constitute an indictable offense and the question whether impeachment is the exclusive removal device with regard to judges. 758
Has a Supreme Court Judge Ever Been Impeached? Yes.
The Chase Impeachment .--The issue was early joined as a consequence of the Jefferson Administration's efforts to rid itself of some of the Federalist judges who were propagandizing the country through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase.
''The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate. . . . A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . .
[but] nothing more than a declaration of Congress to this effect:
You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.'' 772
Chase's counsel responded that to be impeachable, conduct must constitute an indictable offense. 773 Though Chase's acquittal owed more to the political divisions in the Senate than to the merits of the arguments, it did go far to affix the latter reading to the phrase ''high Crimes and Misdemeanors'' until the turbulent period following the Civil War. 774
Can the House of Representatives impeach a Supreme Court Justice? Yes.
Again, there are two issues that DeFazio is looking at as impeachable offenses for Chief Justice Roberts. They are:
Justice Roberts' testimony during the 2005 confirmation hearings and Justice Stevens' Dissenting Opinion in Citizens United v. Federal Election Commission.
In Roberts own words:
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."
Speaking to the Georgetown University Law Center commencement in May, 2006, Chief Justice Roberts said:
[T]here are clear benefits to a greater degree of consensus on the Court.
Unanimity or near unanimity promote clarity and guidance to lawyers and to the lower courts trying to figure out what the Supreme Court meant.
Perhaps most importantly there are jurisprudential benefits:
The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible grounds.
It's when the decision moves beyond what's necessary to decide the case that justices tend to bail out.
If it's not necessary to decide more to dispose of a case,
in my view,
it is necessary not to decide more.
In Felix Frankfurter's words, a narrow decisions helps ensure that we "do not embarrass the future too much."
- emphasis added
Roberts and his cohorts acted contrary to Roberts own words.
The willful abandonment of Roberts own council raises these questions:
Can a zealous adherence to a strict ideology thwart judgement? And, if a Justice promotes law contrary to standard procedures and good practices that could only be explained as arising from a zealous adherence to a strict ideology, wouldn't this be the very definition of an Activist Judge?
According to DeFazio:
Roberts hasn't stood by his own doctrine. He pointed to former Justice John Paul Stevens's dissent in the case, in which he said the Citizens United case was not properly brought before the Supreme Court.
The first reason is that the question was not properly brought before us."
Roberts actively chose to reconsider Austin and McConnell. Citizen's United did not ask for this scope of consideration.
In declaring §203 of BCRA facially unconstitutional on the ground that corporations' electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court's invitation.
This procedure is unusual and inadvisable for a court.
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.
Isn't it a reasonable conclusion, based on the Roberts Courts' final ruling, to find that he did so because he wanted it changed. That is what an activist Judge would do. And, certainly, there are others who have shown their true partisan colors over the years that sit on the Court as well.
Prior to Roberts, the conservative court voted in favor of George W. Bush. The only time in history that the US Supreme Court decided the results of a Presidential election.
This time the conservative court voted to overturn over 100 years of legal precedent by giving Corporations the same status as individuals, even though that isn't even what Citizen's United was asking for, and removing 100 years of legal barriers in place to protect the electoral process from corporate and legislative corruption, which is what the laws for the past 100 years were in place to do.
"Justice Stevens makes the point that Roberts decided a case that wasn't even before the Court, and invited the issue before the Court,"
"It was the most extraordinary condemnation I've ever read of a perverted majority on the Supreme Court, at least in recent years."
The real issue in this case concerns how, not if, the appellant may finance its electioneering.
Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets.
Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to.
It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election.
Neither Citizens United's nor any other corporation's speech has been "banned," ante, at 1.
All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period.
The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided.
Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.
I interpret this to mean that Citizen's United had no constraints on its right to broadcast its message except, in accordance with BCRA/2002, up to and excluding the 30 days before the last primary election. Citizen's United asked the court to rule for a change to BCRA, asking for the right to amend the law to allow the broadcast during the 30 days prior to last primary.
Seems like a simple question to be set before the Court, but not necessary for the Court to hear the case.
Roberts court chose to take up this case and to change the focus to broader issue of corporate 'personhood'.
Roberts court put aside over 100 years of legal precedent. In Steven's words:
The majority's approach to corporate electioneering marks a dramatic break from our past.
Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864.
The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990).
Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including
FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL),
McConnell v. FEC, 540 U. S. 93 (2003),
FEC v. Beaumont, 539 U. S. 146 (2003),
FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), NRWC, 459 U. S. 197, and
California Medical Assn. v. FEC, 453 U. S. 182 (1981).
In short, the Roberts' Court cited the opinions of the dissenters to the questions that were answered in prior courts and made into law that kept corporate influence on elections in check.
What is also of interest, and could be used to declare activism on the part of Roberts, is that Roberts' argued this case on merits not covered in lower courts which explains, in part, Stevens dissent and comment above.
There was insufficient prior court rulings on this case for it to be eligible for a Supreme Court hearing/ruling:
The problem goes still deeper, for the Court does all of this on the basis of pure speculation.
Had Citizens United maintained a facial challenge, and thus argued that there are virtually no circumstances in which BCRA §203 can be applied constitutionally, the parties could have developed, through the normal process of litigation, a record about the actual effects of §203, its actual burdens and its actual benefits, on all manner of corporations and unions.
In this case, the record is not simply incomplete or unsatisfactory; it is nonexistent.
Congress crafted BCRA in response to a virtual mountain of research on the corruption that previous legislation had failed to avert.
The Court now negates Congress' efforts without a shred of evidence on how §203 or its state-law counterparts have been affecting any entity other than Citizens United.
And, if all this isn't bad enough, apparently the Roberts' court based its findings on imaginative future possibilities invented as justification for its ruling.
While tacitly acknowledging that some applications of §203might be found constitutional, the majority thus posits a future in which novel First Amendment standards must be devised on an ad hoc basis, and then leaps from this unfounded prediction to the unfounded conclusion that such complexity counsels the abandonment of all normal restraint.
Yet it is a pervasive feature of regulatory systems that unanticipated events, such as new technologies, may raise some unanticipated difficulties at the margins.
The fluid nature of electioneering communications does not make this case special.
The fact that a Court can hypothesize situations in which a statute might, at some point down the line, pose some unforeseen as-applied problems, does not come close to meeting the standard for a facial challenge.
Beside which, Citizen's United abandoned its facial challenge in District Court prior to its approach to the Supreme Court.
In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203. App. 23a–24a.
In its motion for summary judgment, however, Citizens United expressly abandoned its facial challenge, 1:07–cv–2240–RCL–RWR, Docket Entry No. 52, pp. 1–2 (May 16, 2008), and the parties stipulated to the dismissal of that claim, id., Nos. 53 (May 22, 2008), 54 (May 23,2008), App. 6a.
The District Court therefore resolved the case on alternative grounds, and in its jurisdictional statement to this (Supreme) Court, Citizens United properly advised us that
it was raising only "an as-applied challenge to the constitutionality of . . . BCRA §203." Juris. Statement 5.
An as-applied challenge to a Congressional ruling: BCRA ss203. PERIOD. No mention of previous Supreme Court rulings in the lower courts. Citizen's United injected a limited request to overrule Austin AFTER its lower court history and injected it in its Merit Briefing to the Supreme court.
Moreover, even in its merits briefing, when Citizens United injected its request to overrule Austin,
it never sought a declaration that §203 was facially unconstitutional as to all corporations and unions;
instead it argued only that the statute could not be applied to it because it was "funded overwhelmingly by individuals."
Brief for Appellant 29; see also id., at 10, 12, 16, 28 (affirming "as applied" character of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009)(counsel for Citizens United conceding that §203 could be applied to General Motors); id., at 55 (counsel for Citizens United stating that "we accept the Court's decision in Wisconsin Right to Life").
Keep in mind, the Roberts Court majority chose the path and scope it addressed using the Citizen's United case. That's activism.
"‘It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,'" Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam) (quoting Duignan v. United States, 274 U. S. 195, 200 (1927)),
and it is "only in the most exceptional cases" that we will consider issues outside the questions presented, Stone v. Powell, 428 U. S. 465, 481, n. 15 (1976).
The appellant in this case did not so much as assert an exceptional circumstance, and one searches the majority opinion in vain for the mention of any. That is unsurprising, for none exists.
Setting the case for reargument was a constructive step, but it did not cure this fundamental problem.
Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.
And here we are. Tens of millions of money coming from heaven (hell more likely) knows, buying this mid-term election with the Blessings of the the Roberts majority.
I hope and pray that money can't buy an election, but it is possible.
And now, I am going to ask questions that I do not take lightly. I will be shocked to learn if no one else is thinking of them, too:
Are we at risk of being governed by a new form of fascism? The old form being the State taking over corporations and ruling. The new form the State being taken over by the corporations?
Have we already been taken over by fascist rule? Just because we go through the choreography of elections, doesn't define us as a true democracy, does it?
I ask this honestly albeit very unhappily, and with the deepest concern for each and every citizen of our country and for the world. Because what will that mean for each of us, our children, and the world?
I became most alarmed that this is possible after researching the Housing Bubble for two years where I learned that the run away profits from this Bubble were enabled on all levels of governance. Collusion by those with power and influence was 100% (with a few minor exceptions I am sure).
And, if that wasn't nuevo fascist enough, tens of millions of Americans are at the mercy of corporations who have taken away their livelihoods, refuse to hire even when flush with cash, and are now taking away the homes of 800,000 families a month.
HOW MUCH OF A WAKE UP CALL DO WE NEED?
This one case, Citizen's United, is the wake up call. You will be convinced if you take the time to read Steven's dissent in full. We, the people, do not have a Supreme Court right now. We have a Corporate Court!
We are at risk of having a more Corporate House and a more Corporate Senate.
If we fail to secure a TRUE BLUE majority in both, our hands will still be tied by the Corporate Representatives and Senators.
That leaves one branch to save this country from outright fascism. The Executive.
Can the President win our battle for us? No.
Are corporations building up an angry, militant citizenry that could take this country to the brink? Yes.
Will the corporations ever stop trying and vying for complete control? No.
So, what do we do? How do we save the democracy our forefathers died for, bled for, and worked for?
How do we achieve a Social Democracy like the Nordic countries enjoy where health and even higher education are provided so all the people are TRULY free to work hard and achieve their highest potential, not just the elite? where green energy is pursued/implemented? where health of body, mind, and spirit are fostered and revered? where our children don't become debt slaves in order to get an education? where nearly half the country's resources aren't spent on military pursuits?
We hear all the talk of a New World Order which I have always assumed would be impossible because politicians and varying political structures would never be able to form a consensus.
But, if corporations can run a State as powerful and the United States, what is to keep them from running the world?
The world has allowed a corporate take over of the world.
Corporations own energy, water resources, transportation, mercenary armies, mines, agriculture, financial management, and so on.
Corporations control the resources we need for survival. We have given them that power via raw capitalism.
Corporations now control nearly every aspect of our lives in one way or another. And do any of us doubt that they won't seek more and more control? Right down to VeriChips and exoskeletons? I know it all sounds outlandishly sci-fi, but sci-fi is here and now.
Can we really afford to believe otherwise? Do we really believe corporations care one iota about you and your personal welfare? They don't.
And now, the Supreme Court of the United States would be better termed The Corporatist Court of the Corporatist States of Former America and it has provided corporations with power to sway our elections, to steal the small remaining representation we have.
So, I ask again, are we at risk of being governed by corporations which is called fascism?
Or, are we already a fascist country?
And, I don't ask these questions lightly. I am wondering if I am the only one that is beginning to wonder.