Backgrounder: Impeaching the Court

January 24, 2019

by Mark Franke

We’ve been here before, the “here” being an attempted politicization of the Supreme Court by a political party. Justice Brett Kavanaugh is being lined up as the next target.

Once the midterm elections gave the Democrats a majority in the House of Representatives, new Judiciary Committee Chairman Jerry Nadler was overheard plotting possible impeachment proceedings against Justice Kavanaugh. This week a freshman member of that committee, Joe Neguse, publicly declared impeachment proceedings are likely as “there’s no question he committed perjury.” No matter that Neguse didn’t or couldn’t point to any specific instance of lying to Congress. No matter that the FBI investigation came a cropper. No matter that Kavanaugh’s accusers stampeded to the exits.

The Kavanaugh posse needs only a simple majority in the House to vote impeachment, assuming the Democrats can enforce party discipline on their caucus more successfully than the Senate Republicans did on their own members during the previous Congress.

They then will need a two-thirds majority in the Senate to convict, and anything short of that keeps Justice Kavanaugh on the Court. There’s also the political problem, or should I say fallout, from an unsuccessful impeachment attempt. Just ask the Republican survivors of their botched attempt to impeach President Clinton in 1998.

But back to my opening statement that we’ve been here before.

In the early years of our republic, the new federal courts opened with judges appointed by Presidents Washington and Adams, both of whom favored the Federalist Party. When Thomas Jefferson and his Democratic-Republicans took office in 1800, they resolved to replace as many of these judges as possible with ones more favorable to their philosophy.

Jefferson’s first problem was the Constitution. Federal judges are appointed without term and shall “hold their Offices during good Behavior.” In other words they sit for life or until voluntary retirement. The wisdom behind this was to isolate judges as much as possible from undue pressure from purported political masters and from fickle public opinion. Independent is the positive adjective most used in describing our judiciary.

Jefferson was having none of that. He targeted Supreme Court Justice Samuel Chase in 1804 because of “arbitrary, oppressive, and unjust” rulings and acting in a “partizan” manner. Even with the Democratic-Republicans holding nearly three-fourths of the Senate seats, they could not reach the two-thirds threshold. Chase remained on the Court to Jefferson’s chagrin.

Chase’s trial set the bar for what constitutes impeachable offenses under the Constitution’s requirement of “high Crimes and Misdemeanors.” No impeachment of a Supreme Court justice has occurred since.

Jefferson’s problems, however, were just beginning. The Chief Justice at the time was Federalist-appointed John Marshall, during whose term foundational rulings were handed down that set legal precedent for the new nation and established the Court as an equal partner in the federal government. Here are just a few: Marbury vs. Madison initiated the doctrine of judicial review of the constitutionality of legislation and executive actions; McCulloch vs. Maryland established federal supremacy over the states in cases involving federal law; and Dartmouth College vs. Woodward solidified the inviolability of contracts even against state action, essential to preservation of property rights.

Things came to a head when Marshall presided over the treason case against Aaron Burr, the most enigmatic of our Founding Fathers. Burr was being tried for allegedly fomenting an armed rebellion in the western states and territories. Jefferson declared Burr guilty before either indictment or trial and applied overt and covert pressure to achieve a guilty verdict, including confiscation of Burr’s property. Alas, it was all to no avail.

Marshall’s conduct of the trial was masterful and his summing up made it clear to the jury that the law of the land, not the current political climate, was the inviolable standard for our courts.

So we have come full circle. Will we be subjected to an impeachment proceeding, with all its political posturing and grandstanding? Or will those elected to high office by the voters put the Constitution above petty partisan rancor? History suggests not.

Mark Franke, an adjunct scholar of the Indiana Policy Review, is formerly an associate vice chancellor at Indiana University-Purdue University Fort Wayne.


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