On Thursday, June 28, the Supreme Court upheld the Patient Protection and Affordable Care Act, thanks to Chief Justice John Roberts figuring out that although the law’s individual mandate to buy health insurance was unconstitutional under the Commerce Clause, it is, nevertheless, just fine and dandy under another part of the Constitution pertaining to Congressional taxation power.
On Friday, June 29, an extremely agitated Tony Bartbight, notorious Tea Party activist, sat bolt upright in the chair directly in front of my desk, fuming like the fuse on a Fourth of July firecracker.
“Can you believe what that [expletive] [expletive] did?” Bartbight indignantly demanded.
“You mean, Supreme Court Chief Justice John Roberts?” I sought to verify.
“Who the [expletive] else do you [expletive] think I’m [expletive] talking about?” Bartbight huffed. “It’s [expletive] intolerable! So okay, Collins, let’s see you do your stuff. I hear you’re supposed to be the smartest person inside the Beltway!”
“Which is a lot,” I commented, “like being the tallest building in Baltimore.”
“Baltimore?” Bartbight spat. “Nothing but a nest of liberal scum. Democratic machine politics at its worst. A bunch of nanny state Socialists who want force true patriots to eat tofu and broccoli under pain of death! Just like Chicago!”
“Or,” I offered, “San Francisco.”
“Yeah,” he sneered, “where the Democrat queers want to gay marry their dogs.”
“Or New York,” I suggested.
“Yeah,” he growled, “where jackbooted police thugs arrest you for possession of a twenty-ounce Mountain Dew! And now Roberts has gone over to their side! So, Mr. Smartest Man in Washington, tell me – how do we impeach that [expletive] [expletive] [expletive] before he and Obama turn this country into something that would embarrass [expletive] Stalin, huh?”
“Impeach?” I echoed, as if I were uncertain I had heard him correctly – which wasn’t true, of course. But I have found that it’s always a good idea to offer clients like Mr. Bartbight an opportunity to revise remarks like that.
“Hell yeah,” he self-righteously persisted. “Less than forty-eight hours since that [expletive] [expletive] us and already there’s a full inventory of ‘Impeach John Roberts’ merchandise for sale on the Internet. We’ve got ‘Impeach John Roberts’ tank tops, T-shirts, baseball caps, boxer trunks, bikini bathing suits, hoodies, sweatshirts, baby onesies, snuggies, headbands, teddy bears, cell phone caddies, mouse pads, laptop bags, tablet bags, handbags, tote bags, knapsacks, mugs, highball glasses, shot glasses, wall posters, post cards, bumper stickers, refrigerator magnets, pet food bowls, doggie sweaters, pet toys, umbrellas, beach parasols, sandwich signs, chicken suits…”
“A truly impressive demonstration of the First Amendment,” I interrupted.
“Yeah,” he agreed, “but what I want to know is, what’s the best grounds to impeach him on?”
“Have you considered any particular…”
“Of course!” Bartbight thundered. “First of all, there’s high treason!”
“Well,” I cautioned, “Wouldn’t high treason require some sort of… collusion with a foreign power?”
“Obama!” Bartbight shouted back at me. “Obama’s a foreigner! He was born in Kenya!”
“All right,” I carefully responded, “let’s suppose, for the sake of argument, that Obama is, in fact, some sort of foreigner. The problem is, there’s no proof of that, is there? To impeach John Roberts under that scenario, you’d need to prove that Obama’s a foreigner. What have you got to prove it?”
“Obama’s birth certificate!” Bartbight insisted. “It’s a forgery!”
“Okay,” I allowed, “maybe – let’s suppose that it is. But that only proves he can’t substantiate his constitutional obligation to be President of the United States. It doesn’t prove he’s a foreigner, does it?”
“All right,” Bartbight snorted, “leave the hair splitting about those issues to the lawyers, then. Look, Roberts has some sort of brain disorder, okay? He’s had seizures and such [expletive]. How about that?”
“By itself,” I assessed, “that’s pretty thin gruel. Plenty of powerful people in high places have some sort of health problem or another.”
“Yeah,” Bartbight acknowledged, “but not one that affects their… thought process. How else can you explain him reading ‘penalty’ and ‘fee’ and seeing the word ‘tax’ there instead?”
“You’re contending,” I asked, “that when Chief Justice Roberts read the law in question for his decision, he was hallucinating or something?”
“In my opinion,” Bartbight snarled, “that’s a very… charitable way of describing his state of mind. Bat [expletive] crazy is more like it.”
“Oh come now,” I chided, “it’s not like Chief Justice Roberts is running around naked chewing people’s faces off, is it? There are, after all, a lot of folks who think his rationalization of the health insurance mandate is a formidable logical achievement.”
“And all of them,” Bartbight protested, “are bat [expletive] crazy, too!”
“I just don’t see how,” I volleyed back, “House Republicans are going to convince themselves, much less the public, that Roberts is nuts.”
“How about just plain old incompetent, then?” Bartbight ventured. “Obviously, the man can’t read too good, now can he? He saw ‘penalty’ and ‘fee’ and thought they meant ‘tax,’ didn’t he? Do we want somebody on the Supreme Court who can’t even [expletive] read?”
“Roberts got through Harvard Law School,” I observed. “And regardless of what opinion one might have about Harvard, I think it’s generally conceded, even among those who are not very enthusiastic about the quality of its graduates, that all of them can read English as well or better than the average bus driver.”
“Is that the kind of standard,” Bartbight implored rhetorically, “we want applied to members of the Supreme Court? That they can read as well as [expletive] bus drivers?”
“Face it,” I advised, “nobody’s going to vote for impeachment on the basis of an argument that John Roberts can’t read.”
“Failure to perform his duties in accordance with reasonable expectations, then!” Bartbight yelled. “The man’s too [expletive] lazy to look up the words ‘fee’ and ‘penalty’ in the [expletive] dictionary and see that no [expletive] way are they synonyms for the word ‘tax!’”
“Actually,” I pointed out, “he would determine that by consulting a thesaurus.”
“Whatever!” Bartbight exploded. “Look at Scalia! He uses an eighteenth century dictionary and an eighteenth century thesaurus to interpret the Constitution all the time! And you can bet your [expletive] that Antonin Scalia knows that fees and penalties aren’t [expletive] taxes, too!”
“If a Supreme Court Justice could be impeached for laziness,” I posited, “it seems to me that Justice Clarence Thomas would have been given a boot in his shiftless posterior a long time ago.”
“That’s not fair!” Bartbight objected. “All us conservatives know Thomas is nothing but a token. Where do you get off comparing an Uncle Tom like him to a white man like Roberts, who’s supposed to know the meaning of actual work?”
“Nevertheless,” I maintained, “if nobody in Congress has ever demanded the impeachment of Clarence Thomas for…”
“Nobody could!” Bartbight complained. “He’s a [expletive]! How the [expletive] could anyone call for his impeachment on grounds of laziness? They’d be crucified!”
“Seriously,” I warned, “it’s sounding very, very tenuous here. Why don’t you…”
“Wait, wait! I’ve got it! I’ve got it!” Bartbight enthused. “Alien abduction! Socialists from outer space kidnapped the real John Roberts and replaced him with a brainwashed clone! Let him disprove that!”
“Like any other American legal proceeding,” I reminded him, “the burden of proof in an impeachment proceeding is upon the accusers. The Tea Party would have to produce evidence of the flying saucers and so forth allegedly involved in the alleged plot.”
“Oh, damn,” he fretted. “That’s right. Okay – how about this: violation of an implicit contract with the American people. When he testified before Congress during his confirmation hearings, see, Roberts said things that created an implied obligation to keep the gays, feminazis, dope fiends and commies in their place. And when he upheld Obamacare, he violated that contract!”
“But aren’t contract violations a civil matter?” I asked. “And doesn’t the Constitution cite ‘bribery, high crimes and misdemeanors’ as the standard for impeachment? It doesn’t say anything about not delivering on implied promises, does it?”
“Well,” Bartbight grumbled, “how about nailing him for abuse of his office?”
“What sort of abuse?” I inquired.
“He legislated from the bench!” Bartbight snapped. “He changed a law that called for penalties and fees to be levied on anyone who didn’t do what the federal government ordered them to do – which means, buy health insurance – into a tax law. And as a member of the Judicial Branch, he has no authority to make new laws or change existing ones.”
“Roberts’ attorney will make mincemeat out that argument,” I predicted. “He’ll bring up every instance of judicial activism every one of the other conservative justices has ever committed as counter examples. Furthermore, he will need a wheelbarrow to deliver the documentation, and trust me, he will use one – the image is perfect for television.”
“Let me remind you,” Bartbight proclaimed, “that the House of Representatives impeached Justice Samuel Chase for blatant unfairness! Do you see any reason why the House couldn’t do that again, this time to Chief Justice Roberts?”
“First of all,” I replied, “That was in 1805. Secondly, the articles of impeachment for Samuel Chase concerned rulings he had made as a judge in lower courts, not the Supreme Court. Modern Supreme Court justices don’t function as federal circuit court judges anymore, so there are no lower court cases tried by Roberts while he was a Supreme Court justice that could be used as analogous grounds to impeach him. Thirdly, at his trial by the Senate, Chase was acquitted by a huge majority. In fact, the incident you’re using as a rationale to impeach Roberts is generally agreed by most historians to be the first significant precedent for the establishment of an independent federal judiciary immune from the threat of removal from office. ”
“Oh, [expletive], that’s right,” Bartbight muttered ruefully. “Okay, then, let’s try a different tack… um…. how about gross, irresponsible and totally asinine misinterpretation of the United States Constitution?”
“Gross, irresponsible and totally asinine misinterpretation of the United States Constitution is the purpose and mission of the Supreme Court,” I observed. “How could doing that possibly be grounds to remove one of its members from office? And besides, suppose the dog actually catches the car. What then? Suppose the Tea Party actually succeeds in bullying Congress into impeaching John Roberts. Then what? Then, according to the Constitution, the President will have to nominate Roberts’ replacement and also nominate either that individual or one of the other eight Associate Justices to be Chief Justice. Bottom line – the Tea Party would be giving Barack Obama the opportunity to nominate Ruth Bader Ginsberg, Elena Kagan or Sonia Sotomayer for Chief Justice and put God knows which radical liberal from the dreaded Ninth Federal Circuit in as a replacement for Roberts. Ever think of that?”
Bartbight’s eyes went wide as about thirty seconds of profound silence filled the room. “Think?”
“Tell you what,” I offered. “If you leave now, I won’t bill you for this consultation.”
Another thirty seconds of silence passed. “[Expletive],” Bartbight sighed. “Okay.”