The Daily Beast: Impeach Scalia

First, let’s stipulate that people are entitled to be crackpots. They are entitled to hold absurd viewpoints; and in the United States, thanks to the First Amendment, they are even entitled to express them. 

But an associate justice on the United States Supreme Court has to play by different rules. We elect presidents and members of Congress precisely because of their political views; but we appoint judges only if we believe they will make every effort to transcend them. If they cannot or will not, it’s Congress’s job to take them out of the game. In Justice Scalia’s case, the time for that drastic action has long since arrived.

Removing a judge from the bench for expressing deeply held views will make some people on the left nervous and, as we saw when I floated a similar suggestion back in April, it will surely make many on the right apoplectic. Admittedly, it’s not something Congress has done before—but that’s only because the high court has never before harbored a member quite so imperious and intolerant as Antonin Scalia.

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First, judges are supposed to be impartial. What does that mean? It doesn’t mean they are not supposed to have personal opinions; it means they are supposed to work very hard to avoid letting those opinions influence their legal judgments. For example, in the many years I have worked as a death-penalty lawyer, several Supreme Court justices, including most notably Justice Harry Blackmun, have said they personally oppose the death penalty, but that did not stop them from ruling against my clients and paving the way for their executions, because that is what they understood the law to dictate in those cases. (At the end of his tenure, more than 20 years after his dissent in Furman, Justice Blackmun did finally renounce the constitutionality of the death penalty—because, he wrote, it was a “delusion” to believe it could be reconciled with the Constitution.)

In other words, most justices work their hardest to put their personal viewpoints aside. Justice Scalia doesn’t even pretend to try.

You can read the entire article HERE.