In the absence of either public virtue or a decent elite, the logic of Federalist 10 collapses.
In March 1804, the House of Representatives did something for the first and, sadly, last time: It impeached a justice of the Supreme Court for abusing the office of a judge. The high-Federalist Samuel Chase was acquitted by a Jeffersonian-dominated Senate, setting a precedent that a judge should not be impeached for his or her rulings. It is a precedent that should be, as it were, reversed.
Mark Pulliam has wisely counseled that conservatives will rue an escalating war of judicial impeachment, and that, regardless, the device requires more institutional assertion and judgment than Congress can reasonably be said currently to possess. James R. Rogers similarly argues that Congress has ample weapons short of impeachment to control judges.
Yet the power of these subordinate weapons is diminished by the dismemberment of the ultimate one. Put otherwise, the problem with the untouchability of judges is not that some of them should be impeached but rather than all of them know it will never happen. An impeachment and removal now and then, if only for public morale, would have the effect not just of punishing an individual judge — and surely there are deserving candidates over the course of time — but also of reminding all the others that they are ultimately subject to the political branches.
No one worthy of the office of a judge would fret over impeachment before writing every opinion. The point is that a judge who knows he or she cannot be removed no matter how unmoored or unreasonable his or her judicial opinions may be will inevitably display the arrogance the Anti-Federalist Brutus predicted: Supreme Court justices, he wrote, “are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
It is certainly reasonable to believe Chase acted in such a manner, from his notoriously partisan harangues from the bench to his high-handed declarations of law at a time when the law was generally thought to be triable by juries along with facts.
His impeachment was a Jeffersonian shot across the judicial bow. To defenders of the Chase precedent, that is evidence that Chase should have been acquitted. It is in fact exactly how the constitutional system should work. Publius declared as much in Federalist 81: The impeachability of judges was “alone a complete security” against their abuse. Knowing of that threat, judges would never engage in “a series of deliberate usurpations on the authority of the legislature….” James Madison likewise wrote that judges’ “amenability to the Legislative tribunal in the form of impeachment” was an available means by which they could be “kept or reduced within the paths of duty….”
Note that on Publius’ account, impeachment is available for a “series” of judicial abuses. Such was arguably the situation in the Chase impeachment. Impeachment is not for discrete instances of abuse alone, unless they rise to a grave level. The doctrine has instead become that judges are home-free unless, in the parlance of Louisiana politics, they are caught with a dead girl or a live boy. The overwhelming proportion of judges impeached and removed have been accused of corruption of various sorts.
But impeachment, whether of presidents or judges, is fundamentally a political rather than a juridical instrument: “political” in the prudential rather than the partisan sense. Impeachment requires an offense but not a crime. Unfitness for office can be impeachable, as can abuse of power, even if these actions do not constitute literal crimes. One of the articles of impeachment against Richard Nixon accused him of violating the rights of citizens. Impeachment’s reduction to a criminal standard lets legislators escape the duty of judgment that is implicit in the term of art “high crimes and misdemeanors,” which, as Federalist 65 notes, refers to political offenses. The revered William Blackstone applied it to “the mal-administration of such high officers as are in public trust and employment.”
To be sure, Article III specifies a standard of “good behavior” for judges rather than “high crimes and misdemeanors.” But it also does not supply a procedure of impeachment for them even though one was plainly intended. It must therefore be the case that judges are “civil officers” under Article II’s impeachment clause and that the standard of “high crimes and misdemeanors” consequently applies to them.
The Congress did remove Judge John Pickering of New Hampshire — his Senate conviction occurred on the same day as Chase’s impeachment by the House — an incident remembered mainly for the jurist’s drunkenness and insanity. But it is significant that one of the counts was an unlawful ruling involving a Jeffersonian Customs officer’s seizure of a ship owned by one of Pickering’s fellow Federalists.
Nonetheless, both the Chase and Pickering impeachments were widely assumed to mark political broadsides against the courts by Jeffersonians. It is only a sanctimonious view of courts as standing above the sordid practice of politics that sees this as inherently contemptible. In fact a measured politics that includes impeachment can be a valuable corrective for judicial abuse.
More important, it can be a preventative. Again, the problem with impeachment is not that the device is reserved for grave cases of abuse — it should be; no serious power should ever be casually invoked — but rather that it is wholly off-limits where judicial behavior is concerned. One result is that judges are free to ignore Congressional attempts to control them (witness Boumediene, in which the Supreme Court bulldozed Congress’ jurisdiction-stripping) with impunity.
The question is how constitutional jurisprudence might work not if judges lived not in terror of impeachment but were simply aware of its possibility not merely for felonious crimes but also for what “high crimes and misdemeanors” actually means, which encompasses abuse of an office. Consider the difference between Presidents and Justices. The former know impeachment can be accomplished — with great difficulty, yes, which is how it should be — and they adjust accordingly. It is no panacea for presidential abuse, especially given the polarization of Congress. The point is that presidents know impeachment is out there, lurking somewhere on the frontier of possibility.
Judges, by contrast, more or less know their robes provide impenetrable protection. That is what has to change. It has taken only two presidential impeachments — which were not even successful — and the near certainty of a third for presidents to get the message that there are outer boundaries to their ability to get away with abusing their authority.
There are no such limits with judges. It beggars belief that at no point between 1804 and now could the House and Senate have concurred that a Supreme Court justice had abused his or her authority. There have been several justices who have demonstrated a consistent pattern of abuse — which is to say disregarding the law in favor of political agendas — including some on recent courts. Do we agree as to who they are? No, but disagreement does not mean the argument should not be had. Congressman Gerald Ford had it right when, attempting to impeach Justice William O. Douglas, he said an impeachable offense was whatever the House believed it to be.
It is certainly true, as Pulliam notes, that this sword cuts with two edges. It can be used against conservative judges as well as liberal ones. This would be an imprudent moment to trigger an impeachment arms race. Pulliam is equally right that such an approach requires Congress to demonstrate fortitude it has recently lacked. And Rogers is right that it should not be an easy resort when so many other mechanisms of control are available.
Judicial impeachments need not, and should not, be routinized to have their restraining effect. One or two at sufficient intervals would do the trick. The wide constitutional margin necessary for conviction is safety enough against a purely partisan use of the device. The far larger problem is the wide margin allowed judges without having even to fear it.