By Will Giles.
Most of us are familiar with the Monica Lewinski affair that engulfed Bill Clinton’s second term in scandal and led the House of Representatives to bring articles of impeachment against him. He was acquitted, just as in the less familiar case of President Andrew Johnson’s impeachment in 1868, albeit by only one vote in Johnson’s case. President Richard Nixon’s actions during the aftermath of the Watergate break-in almost led to President Nixon joining the other two on this dishonorable list, but he resigned before the House of Representatives could bring impeachment charges against him.
There is, currently, clamoring by individuals on Capitol Hill on the far right for the impeachment of President Obama on the basis of the troubled implementation of the Patient Protection and Affordable Care Act. However, no calls for the impeachment of Chief Justice John Roberts, or the four other Justices who joined him in his majority opinion, were made after the Supreme Court ruled in favor of Obamacare in National Federation of Independent Business v. Sebelius.
You may ask if the impeachment of a Supreme Court Justice is even possible. The Constitution provides us with the answer. Article II, section 4, states, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and Misdemeanors.” Since Justices of the Supreme Court are “civil Officers of the United States”, they can be impeached.
Two of forty-four Presidents have been impeached. Yet, out of 112 Justices, only one has been impeached: Associate Justice Samuel Chase in 1805.
Samuel Chase had enjoyed a storied career before becoming the ninth Justice appointed to the Supreme Court. He was a member of the Maryland General Assembly for many years and signed the Declaration of Independence as a member of the Maryland delegation to the Continental Congress. He began his judicial career with appointments as Chief Justice of the District Criminal Court in Baltimore in 1786 and of the Maryland General Court in 1791. President George Washington then appointed Chase as an Associate Justice of the Supreme Court on January 26, 1796.
The Supreme Court was the weakest branch of government during the early years of the country due to its limited enumerated rights within the Constitution. The Judiciary was the last branch deliberated upon at the Constitutional Convention in Philadelphia; her powers and requirements listed in Article III, behind the Articles concerning the Legislative and Executive branches (both of which are considerably longer and more-detailed). While debate was hotly contested during the process of the delineation (and restriction) of powers to the Executive and Legislative Branches, the debate to institute the Judicial Branch was relatively light and brisk. Congress was given the power to determine the number of Justices, the composition of lower courts and to restrict the types of cases the Supreme Court could hear. The President was given the power to appoint the Justices of the Court, with the advice and consent of the Senate. How was the Court supposed to compete against the forces arrayed against it by the Constitution?
The Court’s opinion in Marbury v. Madison (1803), written by Chief Justice John Marshall, finally set the Court on an equal footing with the other branches. Marshall established the concept of judicial review, the power of the Court to serve as an equal, if not superior, judge of the constitutionality of law. He conveniently ignored the dubiousness constitutionality of judicial review itself, as nowhere is it mentioned in the Constitution. Ironically, the Marshall Court had to take it upon itself to accomplish what the Constitution aimed to do: create three separate, but equal, branches of government.
Judicial review allows the Supreme Court to strike down rulings of lower courts and to declare certain actions by Congress and the President to be unconstitutional. The opinion written by Chief Justice Marshall reads, “So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty” (emphasis added). Thus, “[t]he judicial power of the United States is extended to all cases arising under the Constitution.” Cases such as Brown v. Board of Education and Roe v. Wade would have never been heard by the Court if it wasn’t for Marshall’s audacity.
President Thomas Jefferson seethed after the Court’s opinion in the case, which he saw as an unconstitutional power grab by the Court. Combining this with his dislike of the life appointments for federal judges, President Jefferson and his House Democratic-Republican allies hoped to curb the power of the Judiciary by making an example of Justice Chase by impeachment, a Federalist appointed by the Federalist Washington.
Justice Chase ardently opposed Jefferson and the Democratic-Republican Party, even campaigning for John Adams in the presidential election of 1800. He did not hide his views on the bench, even announcing in an address to a Maryland grand jury that, due to the Democratic-Republicans, “The country … [was] headed down the road to mobocracy, the worst of all popular governments.”
The process for removing “civil Officers of the United States” for “High Crimes and Misdemeanors” is outlined in Article I of the Constitution. The House of Representatives “shall have the sole Power of Impeachment.” Section II states, “The Senate shall have the sole Power to try all Impeachments…When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”
The U.S. House of Representatives voted to impeach Chase on March 12, 1804, and the motion passed by a vote of 73 to 22. The House charged Chase with eight articles of impeachment, all of which concerned his conduct outside of deliberations upon the Supreme Court. At the time, Justices were also assigned Circuit Court duties from which Chase’s charges stemmed.
The trial began on February 9, 1805, and the House Managers, led by John Randolph of Roanoke, called 50 witnesses over the 10 day trial. The outlook appeared bleak for Chase; 25 of the 34 Senators belonged to the Democratic-Republican Party, more than the two-thirds required for impeachment.
Against all odds, a verdict of “not guilty” was returned by the Senate. Many Senators did not share Jefferson’s ardent partisanship and considered Chase’s transgressions beneath the benchmark of “High Crimes and Misdemeanors”.
The impeachment trial of Samuel Chase was an important bolster to the Court’s self-asserted independence from the other branches. A majority of senators seemed to realize that the charges and impeachment had been purely political, aimed at impeding the Court’s progress, which a majority of senators seemed to realize. Chase continued to serve on the Court until his death in 1811. Without the attempted purge of this signer of the Declaration of Independence and the gravitas showed by Marshall in Marbury, the Court may not have attained its current status as the most revered branch of our government.
Just like the charges against Justice Chase, the calls for the impeachment of President Obama are ludicrous. Impeachment is not a tool to be used for political gains or expediency, but an important aspect of the system of checks and balances. One such check, established by Marshall’s power-grab in Marbury and the failure of the Democratic-Republicans to impeach Justice Chase, is the right of the Roberts Court to issue an opinion in National Federation v. Sebelius.