Chief Justice John Roberts was concerned enough to go public with a dire warning in hopes that "people will take notice." In a 15-page letter, he outlined an "issue that has been ignored far too long and has now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary."
The crisis that Roberts was warning about in his 2006 year-end report of the judiciary: "the failure to raise judicial pay."
The chief justice may regret such overheated rhetoric now that he may face an actual constitutional crisis. On Tuesday, Roberts again went public, this time in a more muted fashion, issuing a highly unusual public statement seemingly in response to President Donald Trump's call to impeach U.S. District Judge James Boasberg, who recently issued an order blocking the deportation of immigrants under the 18th-century Alien Enemies Act.
“This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!” Trump had posted on Truth Social.
Right on cue, Rep. Brandon Gill, R-Texas, announced on X that he had introduced articles of impeachment against Boasberg, saying he had "attempted to seize power from the Executive Branch and interfere with the will of the American people." Gill's proposed articles of impeachment say that the judge's order, which only temporarily halted the flights, had "created a constitutional crisis."
The chief justice responded in a dry statement:
For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.
In recent years, Bill Clinton's impeachment, the drawn-out vote count in Bush vs. Gore, Obama's executive actions protecting Dreamers and Biden's student loan forgiveness program have all been described as constitutional crises in everything from editorials to subtitles of otherwise thoughtful books. Trump, who claimed electing Hillary Clinton would lead to one, had a boomlet of his own in his first term, from withholding funds to Ukraine to potentially firing Robert Mueller to attempting to overturn his 2020 loss. One columnist called Trump "a constitutional crisis on two legs."
A constitutional crisis is sort of like a car crash; it's easy to point it out after it's happened but hard to predict with certainty. Just as you can drive home recklessly, swerving into other lanes and blowing past the speed limit without getting into a crash, politicians can play fast and loose with the Constitution without actually precipitating an actual crisis.
Watergate is a great example. Richard Nixon ordered his underlings to commit crimes, then covered it up. At various points, he fired prosecutors investigating him, refused to hand over incriminating evidence and appeared poised to potentially defy the Supreme Court. A constitutional crisis seemed imminent right up until it didn't. He backed down, obeyed the court's orders and resigned.
In a 2009 paper, law professors Sanford Levinson and Jack Balkin argued that Watergate was a political crisis and not a constitutional one because Nixon didn't attempt to go beyond his powers. They have a point, although it's cold comfort to the Americans who white-knuckled their way through that dangerous car ride.
More importantly, the routine misuse of the term may have made it harder to get the public’s attention now that our democracy appears to be heading into one. But it's important to be thoughtful about what the words really mean as we try to figure out if we are in a constitutional crisis right now and what to do about it.
Many people seem to think we are in a crisis, including highly regarded law professors, Democratic lawmakers and even people searching the internet. In fact, in mid-February Google searches for the term "constitutional crisis" hit the highest levels since records began in 2004.
There are several arguments in favor. To pick just a few examples: Trump has fired thousands of federal workers apparently in violation of civil service protections, invoked wartime powers to strip legal residents of their right to see a judge, withheld congressionally approved spending, allegedly leveled punishments on everyone from college students to law firms for exercising their freedom of speech and threatened to cancel pardons from his predecessor.
The Republican-controlled Congress, which could have pushed back on any or all of these actions, has almost entirely rolled over. But courts have pushed back more aggressively, ordering Trump to reinstate fired workers and restore some funding.
In response, Trump administration lawyers have played dumb or tried too-clever-by-half word games to try to get around these orders, while the president and his allies have huffed and puffed on social media and in Congress. (The judges, for their part, have had some sharp words in questioning the lawyers.)
So far, the administration may have defied a court order in the deportations, but it's still largely following the others. What happens next will determine whether we hit a full-blown crisis. But as with Nixon, avoiding that outcome does not make any of this is OK. And Americans shouldn't wait around to see what comes next. In fact, a strong public reaction can head off a crisis by convincing one side to back down, as Nixon did when he realized that he was likely to lose an impeachment trial.
The Trump administration is at the wheel, and the car is careening all over the road. We shouldn't wait for it to crash to tell it to stop.
