How John Roberts Teed Up Elon Musk’s War on the Court

In the American constitutional order, judges cannot be impeached simply for issuing rulings that politicians disagree with. This is a norm, of course, but it is an enduring one. In 1803, Democratic-Republicans in the House of Representatives impeached Justice Samuel Chase, a Federalist, for his judicial work while riding circuit. The Senate, however, declined to convict him and remove him from office. Their decision set the precedent that federal judges can only be removed from office for genuine misconduct, not for partisan or ideological reasons.

Musk’s opposition to lifetime tenure for judges only serves to illustrate the importance of preserving it. “Nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty,” Alexander Hamilton wrote in Federalist 78, than the “permanent tenure of judicial office.” Lifetime tenure, he explained, was an “essential safeguard against the effects of occasional ill humors in the society,” which he described as “the arts of designing men” who would promote “dangerous innovations in the government and serious oppressions of the minor party in the community.”

If it were only Musk who criticized the courts in this fashion, that would be one thing. But these illiberal sentiments are widely shared in MAGA circles. Vice President JD Vance echoed Musk’s complaints about the courts, albeit indirectly. “If a judge tried to tell a general how to conduct a military operation, that would be illegal,” he wrote on Twitter. “If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.”