How and Why to Impeach a Supreme Court Justice

 

Over our country’s history, 15 federal judges have been impeached, and eight removed from office; others resigned in the wake of scandal instead. Unlike for presidents, there is ample precedent for removing federal judges via impeachment. Though no Supreme Court justice has ever been removed this way, there have been two attempts.

The process for impeaching a Supreme Court Justice is outlined in the U.S. Constitution, and is similar to how American presidents can be and sometimes are impeached. Here is a breakdown:

Article I of the Constitution grants the House of Representatives the sole power of impeachment. This means they can bring charges against a Supreme Court Justice.

The Constitution doesn't specify exact crimes, but uses the phrase "Treason, Bribery, or other high Crimes and Misdemeanors." This leaves room for interpretation but generally refers to serious offenses that abuse the power of their office.

Moreover, the standard governing judges’ removal is arguably lower than that for presidents. To be sure, Article I’s reference to “Treason, Bribery, or other high Crimes and Misdemeanors” governs judges and presidents alike, as does the two-step procedure outlined in the Constitution, whereby articles of impeachment pass the House of Representatives on a bare majority vote, and conviction in the Senate occurs after trial by a two-thirds supermajority.

Article III of the Constitution injects a separate standard for federal judges to keep their jobs, expressly providing that they “shall hold their Offices during good Behaviour.” Arguably, “high Crimes and Misdemeanors” should be read with this gloss when it comes to judges, as the Constitution rarely offers such particularized clues as to the thrust and meaning of its terse prose.

There is an Impeachment Process involved:

The House investigates allegations against the Justice. If they find merit, they draft Articles of Impeachment, which would essentially be formal charges.

The House votes on the Articles of Impeachment. A simple majority vote is needed to impeach the Justice.

Then, if impeached by the House, the Senate holds a trial. Senators act as jurors, with the Chief Justice of the Supreme Court presiding (unless the trial is for the Chief Justice themselves).

A two-thirds majority vote in the Senate is required to convict and remove the Justice from office.

Only one Supreme Court Justice, Samuel Chase, has been impeached, in 1804. He was acquitted by the Senate.

There have been other instances where Justices resigned under threat of impeachment, like Abe Fortas in 1969.

Now, we can explore our next subject. Why? Or more specifically, what reasons can the House of Representatives use to take action against Supreme Court Justices. In truth, there is no formal code of conduct for Supreme Court Justices, but recusal laws exist to avoid conflicts of interest.

Congress looked deeply into the grounds for impeaching federal judges in 1970, during an inquiry by a special subcommittee of the Judiciary Committee into the conduct of Associate Supreme Court Justice William O. Douglas. At President Richard Nixon’s behest, then-Republican House Minority Leader Gerald Ford called for the impeachment of the famously liberal Douglas. The allegations included conflicts of interest (Douglas sold an article to a magazine and didn’t recuse himself when a libel case against it later reached the Supreme Court and, separately, had been paid to run a foundation whose namesake purportedly had criminal associations), and political leftism (Douglas’ recent book, Points of Rebellion, Ford said, “fanned the fires of unrest, rebellion, and revolution.”) After a six-month investigation, the majority-Democratic committee voted along party lines to take no action.

However, the committee produced a lengthy report that helped clarify the removal standard. It opined on the behavior for which judges can be impeached, that is, for criminal conduct (either in connection with their judicial role or privately) or for abuse of public duty. The report also cited the federal statute governing federal judicial recusals, 42 U.S.C. § 455. It still provides: “Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality may reasonably be questioned.” By its terms, this law applies to Supreme Court justices, though no means of enforcement exists for it, short of impeachment. (Those who claim the Supreme Court has no code of conduct may overlook this.) The statute goes on to state that a justice should recuse himself where “he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding” or he “knows that he ... or his spouse has” an “interest that could substantially be affected by the outcome of the proceeding.”

Federal judges have been impeached and removed for transgressions that, although serious, seem much less impeachable because they had no bearing on the viability and stability of American democracy.

John Pickering was removed in 1804 from a federal trial court position for mental instability and intoxication. Robert W. Archbold was impeached in 1912 and removed in 1913 from an appellate court post on charges of having an improper financial relationship with litigants. Halsted L. Ritter was impeached and removed from the district court in Florida in 1936 for exercising favoritism in appointing bankruptcy receivers and practicing law on the bench. Most recently, in 2010, G. Thomas Porteous, Jr. lost his seat on the U.S. District Court for the Eastern District of Louisiana for accepting bribes and committing perjury.

The only Supreme Court justice to be successfully impeached was Samuel Chase in 1804, on charges of arbitrary and oppressive conduct during trials (at that point the Supreme Court conducted trials; it no longer does). The Senate acquitted him. In 1969, after President Lyndon B. Johnson nominated him to replace Earl Warren as the chief justice, Associate Justice Abe Fortas resigned from the court under threat of impeachment. Although conservative senators ostensibly filibustered Fortas’ nomination to be chief justice based on his acceptance of a $15,000 fee for attending university seminars, he was under scrutiny for his close relationship with Johnson while on the court.

Fast forward to our present times, and we have now at least two, if not more, justices attending the court whose violations would warrant this kind of constitutionally mandated treatment.

On January 6, 2021, Justice Thomas’ wife, Virginia “Ginny” Thomas helped conduct the insurrection on the steps and inside the capital building in Washington D.C.. The justice’s critics are all citing past efforts by his wife, Virginia “Ginni” Thomas, to reverse the 2020 presidential election in Trump’s favor and her attendance at the rally Trump held on January 6, 2021, shortly before the US Capitol attack. including contacts she had with top Trump advisers about the push and her own role in a mass email campaign to pressure state legislators responsible for certifying Biden’s electors, have put questions about her husband’s participation in relevant legal cases at the forefront.

Thus far, Thomas has given no sign that he intends to recuse himself from Trump v. US or even explain his reasoning for remaining on the case, which the nine justices heard

Then, there is Justice Samuel Alito. The Justice has been under investigation by U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee who released a statement after the Supreme Court Justice refused to recuse himself from cases concerning the 2020 election and the January 6th insurrection. This came on the heels of reports of the New York Times that Justice Alito flew at two separate residences, flags that were carried by insurrectionists at the Capitol on January 6th. The statement reads, “Justice Alito’s response clearly demonstrates why the Supreme Court needs an enforceable code of conduct.

“The Committee has been conducting a thorough investigation into years of ethical lapses by some justices on the Supreme Court—and the Committee has been reviewing the latest reporting on Justice Alito as part of this ongoing investigation.  Flying the American flag upside down at his home is a signal of defiance, which raises reasonable questions about bias and fairness in cases pending before the Court.”

When judges won’t recuse themselves of cases where conflicts of interest are blatantly displayed in full view of the public record, then their ability to fairly adjudicate those cases must be answered in a manner consistent with the remedies prescribed by the constitution, that being impeachment and removal from office.

What would need to happen? What would it take to get the impeachment ball rolling here?

First, there would need to be strong evidence of wrongdoing, like bribery or abuse of power. Public opinion would likely play a significant role, putting pressure on Congress to act.

The political landscape would be crucial. Success would likely require bipartisan support.

Bear in mind, too, that the colleagues on the court’s conservative majority couldn’t “save” these two, Alito and Thomas, if Democrats managed to pass impeachment articles. The question of what behavior justifies impeachment and removal of a Supreme Court justice must be resolved, if anywhere, in Congress alone. The meaning of “good Behaviour” or “high Crimes and Misdemeanors” when it comes to the justices’ own obligations would doubtlessly be deemed a “political question” one that would be non-justiciable, i.e., too close to home.

Change is possible, but real, lasting change requires work and tenacity to see the rewards of efforts made over the long haul.

If you believe as I do, that a constitutional democracy won’t stand for very long in this environment then I would suggest that you do your diligence and contact your congressional representatives in both the House and the Senate and demand that they exercise their right and duty to begin drawing up articles of impeachment against these justices that refuse to honor the spirit of constitutional law.

CONGRESSIONAL SWITCHBOARD 202-224-3121

Thank you for your time and attention.

References:

Politico (2023). The Clarence Thomas Scandal Is About More Than Corruption. Retrieved July 1, 2024, from https://www.politico.com/news/magazine/2023/04/18/clarence-thomas-scandal-corruption-00092335

Politico (2022). How to Impeach a Supreme Court Justice. Retrieved July 1, 2024, from https://www.politico.com/news/magazine/2022/03/30/impeach-supreme-court-justice-clarence-thomas-00021480

CNN (2024). Justice Clarence Thomas chooses not to recuse himself from another January 6-related case. Retrieved July 1, 2024, from https://www.cnn.com/2024/04/25/politics/clarence-thomas-january-6-case/index.html