Impeachment from the Bench: Thomas Jefferson, Samuel Chase, and Brett Kavanaugh

By Kaleena Fraga

Even before the newest Supreme Court justice, Brett Kavanaugh, placed his hand on the Bible and swore to uphold the Constitution, Democrats in Congress faced pressure to remove him from the bench. A petition to impeach the judge quickly hit over 150,000 signatures and think pieces arguing for and against impeachment began to pop up across the Internet.

Faced with this, Democrats in Congress hesitated. “I have enough people on my back to impeach the president!” House Minority Leader Nancy Pelosi exclaimed, when asked if she would impeach Kavanaugh.

Hesitancy on their part is understandable: attempts to impeach justices from the Supreme Court have been few and far between, and have never resulted in an actual impeachment.

The first example of this came early in American history. Thomas Jefferson had swept to power in the “revolution of 1800”, a repudiation of the last twelve years of Federalist rule. Still, despite the ascension of Jefferson’s party to both houses of Congress, most of the Supreme Court remained staunchly Federalist.

One of Jefferson’s first moves as president was to repeal the Judiciary Act of 1801–an act with a dry title and a dramatic history. Jefferson’s predecessor, his frenemy John Adams, had passed the Act in the waning weeks of his one-term in office. It reduced the size of the Supreme Court, and, more importantly, created a lower level of courts which Adams briskly filled with like-minded Federalists with life-terms. Jefferson and his allies accused Adams of packing the court with so-called “Midnight Judges“, giving birth to the lore that the ink on Adams’ appointments had not dried by the time Adams left Washington, skipping out on Jefferson’s inauguration.

When the Judiciary Act of 1801 was repealed (and replaced with the Judiciary Act of 1802, eliminating the circuit judgeships that Adams had created), Supreme Court Justice Samuel Chase–a Federalist with a “volcanic” personality–declared in front of a Baltimore jury that “Our republican Constitution will sink into a mobocracy–the worst of all possible governments.”

Jefferson already disliked the justices of the Supreme Court (his biographer Jon Meacham writes that Jefferson’s “hatred of his cousin John Marshall [the Chief Justice] was cordial, but it was hatred nonetheless”) and found that this outburst from Chase could not stand. He wrote to Congressman Joseph H. Nicholson asking: “Ought this seditious and official attack on the principles of our Constitution and on the proceedings of a State go unpunished; and to whom so pointedly as yourself will the public look for the necessary measures?”

Ever the behind-the-scenes man, Jefferson professed that it would be better “that I should not interfere.”

Jefferson’s cousin and friend, Congressman John Randolph, launched impeachment proceedings against Justice Chase. Chase argued he was being persecuted for his political convictions rather than any actual crimes. (Indeed, one of the articles of impeachment pointed to Chase’s political speech from the bench).

Chase escaped with an acquittal. His impeachment trial set two norms: that judges should not be removed based on their political beliefs, and that judges should remain non-partisan while speaking from the bench.

One hundred and sixty-five years later, a second Supreme Court justice, Abe Fortas, faced impeachment proceedings. Rather than face a trial, he resigned.

Between the dawn of the Republic and 2010, fourteen other federal judges (serving on lower courts) have faced charges of impeachment–eight were removed from office, three were acquitted, and three resigned. It’s no wonder that Democrats today hesitate to engage in impeachment rhetoric when it comes to Kavanaugh; given the history, it would be an extreme move on their part.

Still, for those who shudder at the partisanship plaguing the nation and the Supreme Court today, recall that amidst Jefferson’s time as president, he infuriated the Federalists by such actions as repealing the Judiciary Act of 1801 and attempting to impeach Samuel Chase. One frustrated American wrote to the president he hoped “that your Excellency might be beheaded within one year.”

Thomas Jefferson, Time, and the Supreme Court

By Kaleena Fraga

michelle obama voteAddressing a rally in Las Vegas, former first lady Michelle Obama likened young people’s dismal voting records to her daughters letting their grandmother pick out their clothes or their playlists.

“Now, no offense to grandma,” said Obama. “When you don’t vote, that’s exactly what you’re doing. You’re letting other people make some really key decisions about the life you’re going to live.”

Michelle Obama would have an ally in Thomas Jefferson.

Jefferson, in a letter to his friend James Madison, professed his belief that each generation should play a role in determining their own destinies.

“The question,” Jefferson wrote Madison, in 1789, “whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water.”

Jefferson was writing from Paris, less than a month before he would travel back to the newly formed United States to serve as George Washington’s secretary of state.

“I set out on this ground,” Jefferson wrote, “which I suppose to be self evident, that the earth belongs in usufruct to the living.” After a lengthy piece describing how each generation should be free of the last generation’s debt, Jefferson mused:

“On similar grounds it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation…every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.”

Madison, having recently helped create a constitution which he hoped would last much longer than 19 years, refuted much of Jefferson’s claim, arguing that such a design would create anarchy.

Madison also belonged to the camp of Founders who believed  that judges should hold their positions as long as they exhibited “good-behavior,” a point which Jefferson routinely professed disagreement. In a letter written in 1822, Jefferson once mused to a friend, “Let the future appointments of judges be for four or six years and renewable by the President and Senate.” Jefferson oversaw the only attempted impeachment of a Supreme Court Justice, Samuel Chase, a George Washington appointee whom Jefferson believed was overtly partisan.

As Congress grows more partisan itself, unable to pass significant legislation without a fight, the Supreme Court, and its judges, have become more powerful. Certainly, the Court is not what the Founders envisioned–the first ten justices only served for ten years, whereas most justices since 1970 have spent upwards of twenty-five years on the court.

In 2005, 45 leading legal scholars agreed “in principle” to a plan that would limit supreme court justices’ terms to just 18 years. The proposal’s authors, Paul Carrington (a Democrat) and Roger Cramton (a Republican) note that: “the Founders could not foresee that increases in longevity would imperil the rotation in powerful office essential to representative government.” Their plan, a staggered eighteen year term for justices, would allow for an appointment every two years, or two per presidential term, thus resolving the randomness and the overblown significance of Supreme Court appointments.

Thomas Jefferson, in his belief that the Constitution should be reviewed every nineteen years, would have found this an interesting idea. But it’s a complex one, and would be a tough sell to Congress and the American people, especially as life-terms for justices are engrained in American political life.

In the meantime, for people who want to see change on the political stage, there’s only one thing to do: VOTE!

Ulysses S. Grant, Reconstruction, and the Voting Rights Act of 1965

By Kaleena Fraga

The 14th amendment guaranteed all citizens “equal protection of the laws”, effectively ending the 3/5 Compromise enshrined in the Constitution (stating that states could count black people as 3/5 of a person). As president, Andrew Johnson fought against the 14th amendment and convinced southern states to do the same. Following his lead, southern states refused to ratify it. Still, the amendment was ratified on July 9th, 1868. It was followed by the 15th amendment, which ensured equal voting rights, regardless of race.

This was, Grant said during his presidency, a mistake.

Grant was no racist–far from it–but he recognized the inherent problem of states disenfranchising voters, while using their bodies as tallies toward their power in the electoral college.

What was it about the 14th and 15th amendments that Grant didn’t like?

Grant’s secretary of state, Hamilton Fish, recorded Grant’s thoughts during a particularly tense point in his presidency. The recent presidential election–which would eventually put Rutherford B. Hayes in office–had been highly contested, and Grant and Fish had heard reports from Louisiana that stated that black voters had been so terrorized that “overwhelmingly Republican parishes had ended up in Democratic columns.” A Senate investigation even later uncovered that in one parish 60 black Republicans had been murdered before the election.

Fish wrote of Grant, “He says he is opposed to the XV amendment and thinks it was a mistake; that it had done the negro no good, and had been a hindrance to the South, and by no means a political advantage to the North.”

Grant later clarified what he meant: “[The South] keep[s] those votes, but disfranchise[s] the negroes,” he told journalist John Russell Young. “That is one of the gravest mistakes of reconstruction.” In other words, the 14th amendment increased the population of the South, which gave southern states more heft in the electoral college. So although the South suppressed the black vote, it could count them fully for election purposes. The result was an imbalance of power.

Grant saw it as his prime responsibility–indeed, the prime responsibility of the government–to ensure that everyone had safe, easy access to voting. “I will not hesitate to exhaust the powers thus vested in the Executive,” he said, “for the purpose of securing to all citizens of the United States the peaceful enjoyment of the rights guaranteed to them by the Constitution and laws.”

Grant oversaw the passage of the Civil Rights Act of 1875, which outlawed racial segregation in public accommodations, schools, transportation, and juries. Democratic states did not bother to enforce it, and it was struck down by the Supreme Court in 1883 as unconstitutional. It would take almost 100 years for Congress to attempt anything similar.

It wasn’t until 1957 that Congress passed another civil rights bill; and it wasn’t until 1964 that laws first proposed in 1875 were enshrined into law. Then, in 1965 the country saw the Voting Rights Act, which enabled fair voting to the very citizens that Grant sought to protect, 90 years earlier.

Ulysses S. Grant’s presidency was a long time ago, but his mission, to protect voters, is today more important than ever.

In 2013, the Supreme Court struck down key tenets of the Voting Rights Act. Chief Justice John Roberts, writing the majority opinion, stated that such protections were no longer needed because “our country has changed” for the better. “While any racial discrimination in voting is too much,” Roberts wrote, “Congress must ensure that the legislation it passes to remedy the problem speaks to the current conditions.”

Since 2013, it’s become harder for Americans to vote. In light of the 2013 ruling, southern states have closed at least 868 polling places–the Voting Rights Act of 1965 allowed the Department of Justice to stop closures like these, but that part of the legislation was struck down. Vox points out that these 868 closures are in about half of the counties that were once targeted by the Voting Rights Act because of their history of racial discrimination. This means that there could be hundreds, or perhaps thousands, of closures that are untracked.

In 2018, the United States faces the same problem it faced in the 1860s and 1870s. Americans have a limited ability to vote. Those who work long hours, or shifts, or live far away from polling places, face difficulties having their voices heard. Yet they are still counted, and states can use their bodies (even while it silences their voices) on the electoral stage. To Grant, this oversight on the part of the U.S. government would be nothing less than a dereliction of duty.

The Case of the Missing Monument: John Adams and Historical Memory

By Kaleena Fraga

The Washington Monument. The Jefferson Memorial. Washington D.C. is dotted with such landmarks testifying to the importance of America’s early presidents. But there is one founding father conspicuously absent from D.C.’s memorial scene–the nation’s second president, John Adams.

Even in life, Adams worried about his place in American history. In a letter to Thomas Jefferson written in 1815, after both of their presidencies had ended, Adams wrote:

“The essence of the whole will be that Dr Franklin’s electric rod smote the earth and out sprang General Washington. Then Franklin electrified him, and thence forward those two conducted all the Policy, Negotiations, Legislations, and War.”

George Washington, he predicted, and Benjamin Franklin, would be celebrated while he, John Adams, faded away into oblivion.

A few years later, the question of Adams’ place in American memory continued to gnaw at him. On top of being forgotten, Adams worried that he would be misremembered. He lamented,

“Mausoleums, Statues, Monuments will never be erected to me. I wish them not——Panegyrical Romances, will never be written, nor flattering Orations pronounced to transmit my Character to Posterity in glorious Colours. No nor in true Colours neither.”

Adams is perhaps overshadowed in American history by the presidents whose administrations bookended his one term in office–George Washington, as the nation’s first president, and Thomas Jefferson, who called his own election “the revolution of 1800.” Yet Adams played a crucial role in the nation’s founding, no less so than either Jefferson or Washington.

One of the only founding fathers who did not own slaves, Adams participated in the Continental Congress, helped draft the Declaration of Independence, served as the nation’s first vice president, and as the nation’s second president. He was a determined advocate for the Declaration of Independence, passionately defending it while the quieter Jefferson preferred to listen and watch. Although his maneuvering to avoid war with France during his one-term in office made him unpopular–and his infamous Alien & Sedition Acts even more so–Adams once grumbled:

“I will defend my Missions to France as long as I have an Eye to direct my hand or a finger to hold my pen. They were the most disinterested And meritorious Actions of my Life. I reflect upon them with So much satisfaction that I desire No other Inscription on my Grave Stone than “Here lies John Adams who took upon himself the Responsibility of the Peace with France in the Year 1800.”

Recently, the House of Representatives took concrete steps to establish such an Adams memorial, after years of lobbying by the Adams’ family and their foundation, the Adams Memorial Foundation. Previous attempts to organize a memorial for Adams failed over indecision over the location, running into certain laws that prohibit construction on the Mall or Tidal Basin, the kind of places most of Adams’ proponents would like to see his likeness.

In July 2018 the House passed a bill that would “establish a commission to plan, fundraise and build a memorial to the country’s second president.” The bill’s sponsor, Stephen F. Lynch, who represents the district where Adams was born, Braintree, Massachusetts, believes that the entire Adams’ family deserves to be honored.

“John Adams’ legacy was instilled through his entire family,” Lynch said. “John’s wife Abigail is known as an advocate for women’s rights and his son, John Quincy Adams, later served as our nation’s sixth president.”

John Adams worried that he and his accomplishments would be forgotten. With the passage of the House bill, perhaps the second president will finally get the recognition that he deserves.

William Howard Taft & the Supreme Court

By Kaleena Fraga

William Howard Taft never wanted to be president. He was driven to the White House on the crest of his wife’s ambitions–she had wanted to be First Lady since childhood. Taft’s enduring goal was to join the Supreme Court.

When Taft became president in 1909, he noted to a friend that “if I were now presiding in the Supreme Court of the United States as Chief Justice, I should feel entirely at home, but with the troubles of selecting a cabinet and the difficulties in respect to the revision of the tariff, I just feel a bit like a fish out of water.”

Taft had harbored this ambition since he became a superior court judge in his late twenties. Several times he got close–President McKinley promised him an appointment if Taft would accept his order to serve as Governor General of the Philippines. And President Roosevelt had similarly (twice) offered an appointment. But Taft found himself consistently answering to other callings outside of the Supreme Court–he felt he could not leave his work in the Philippines and his wife, Nellie, convinced him pursue the presidency instead.

Taft didn’t especially enjoy being president–he once remarked that he hardly remembered his one term in office–and the end of his presidency was clouded by his former friend Theodore Roosevelt’s decision to throw his hat in the ring, effectively denying either of them a chance of reelection. But Taft did leave his mark on American jurisprudence–as president, he had the opportunity to appoint six justices to the Supreme Court.

taft sworn inOn October 3rd, 1921, Taft finally realized his ultimate goal and was appointed as Chief Justice of the Supreme Court by President Warren Harding. “This is,” Taft declared, “the greatest day of my life.”

As Chief Justice, Taft would oversee a court that expanded federal power, leaned conservative, and approved of Prohibition.

Many of Taft’s decisions–including a controversial ruling that allowed warrantless wiretaps of telephone conversations to be used against defendants in court–were overturned once he retired from the bench. Antonin Scalia noted that Taft, “had a quite accurate ‘vision of things to come,’ did not like them, and did his best, with consummate skill but ultimate lack of success, to alter the outcome.”

Perhaps Taft’s greatest legacy on the Supreme Court was to increase its power and prestige. Taft convinced Congress to pass the Judges’ Bill of 1925, which gave the Supreme Court more control over the cases in its docket and took away the automatic right of appeal. Taft often pushed for unanimity among his fellow justices, believing that such a statement would increase the court’s authority.

Taft’s wife, Nellie, left a tangible mark on Washington D.C. As First Lady, she set about theSCOTUS beautify the city, and ordered 2,000 cherry trees from Japan as part of this effort. Taft too forever changed the landscape of the capitol. He lobbied Congress to put aside funds for a new Supreme Court building–the one we know today–moving the justices out of the old Senate Chamber and into a building of their own. Taft instructed the architect, Cass Gilbert, to design “a building of dignity and importance suitable for its use as the permanent home of the Supreme Court of the United States.”

Of his presidency, Taft once remarked “I don’t remember that I ever was president.” He served nine years on the bench as opposed to four years as president, presiding over 250 decisions. Taft only left the Supreme Court once his health required that he do so.

Anthony Kennedy, Franklin D. Roosevelt, and Reshaping the Supreme Court

By Kaleena Fraga

On February 5th, 1937, President Franklin Delano Roosevelt announced that he would attempt to expand the Supreme Court bench. His announcement incited instant outrage–Roosevelt’s opponents accused him of trying to pack the court so that he could push through his New Deal policies. Roosevelt’s plan was radical—he sought to completely reshape the court—but the idea of changing the number of justices is not, and indeed, Congress has adjusted the size of the Supreme Court six times in American history.

Originally, the Judiciary Act of 1789 ruled that there would be six justices. But when Thomas Jefferson swept to power in a Democratic wave that also put his party in Congress, the lame-duck Federalist Congress voted to reduce the number of justices to five. When the next Congress was sworn in, they repealed this decision, keeping the court at six justices. In Jefferson’s second term, they added a seventh, affording Jefferson the opportunity to appoint someone to the bench.

Thirty years later the size of the court changed again. Congress increased the court to nine justices, which gave Andrew Jackson the opportunity to hand-pick the two additions to the Supreme Court.

Change came again in the 1860s. This was a a turbulent time for the nation, and the Supreme Court. In the midst of the Civil War the court expanded yet again to an all-time high of ten justices–this time to protect an anti-slavery/pro-Union majority. But when Andrew Johnson became president following Lincoln’s assassination, the Republican Congress reduced the size of the court to protect it from a Democratic president. The court shrank from ten justices to seven. Congress effectively removed Johnson’s ability to appoint any justices. Then when Ulysses S. Grant became president in 1868 after Johnson left office, Congress voted to expand the court to nine justices. For many people in 1937 when Roosevelt made his pronouncement, nine justices felt like a norm—like an unchangeable fact of the judicial system.

Roosevelt’s plan, however, was not as simple as expanding the court. He wanted to enforce rules to make justices retire at 70, and, if they refused, give himself the power to appoint associate justices who could vote in their stead. This would effectively give him the power to sculpt the court, and to ensure the legality of his New Deal legislation.

FDR had had a productive first term, and had won reelection by a stunning margin. (He had won the largest popular vote margin in American history, and the best electoral vote margin since James Monroe ran unopposed). But the justices on the Supreme Court had publicly expressed opposition to Roosevelt’s policies. Because six of the nine were over 70, Roosevelt’s plan would boot them off the bench. His argument was that they had grown too old to do their work, and that they had fallen behind. A lifetime term, Roosevelt said, “was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts.”

But Roosevelt’s statement that the Court was behind on its work wasn’t true. His plan was met with roaring opposition as letters poured in from around the country. Even his vice president, John Nance Gardner, expressed displeasure as the plan was read aloud in Congress, holding his nose and making a thumbs-down gesture. In the Senate, Roosevelt could only gather 20 votes for his plan.

Roosevelt wasn’t able to make any changes to the Supreme Court. Yet, perhaps because of his maneuvering, he convinced one justice, Owen Roberts, to switch his vote to support many New Deal policies.

Given the outrage at the time of Roosevelt’s proposal, and it’s ultimate failure, it’s no wonder that the idea of changing the composition of the court is often met with distrust and derision. But there is nothing in the Constitution that says the Supreme Court has to stay at nine justices, and, indeed, it has fluctuated between six and ten throughout American history. Perhaps Roosevelt could have succeeded if he had merely attempted to expand the Court as Congress did under Jefferson, Jackson, and Grant. 

Today, with the retirement of Justice Anthony Kennedy, the Supreme Court’s swing vote, the idea of changing the composition of the court has begun to gain traction among Democrats. As many liberals look down the barrel of thirty or forty years of conservative Supreme Court decisions, expanding the court to allow the appointment of more liberal justices could be the remedy they are seeking. 

 

The Executive and the Press: John Adams and the Alien & Sedition Acts

By Kaleena Fraga

The relationship between the executive branch and the press is often a tense one. The Obama administration received bipartisan criticism when it tried to crack down on leaks to reporters, and the Trump administration has recently subpoenaed New York Times reporter Ali Watkins in pursuit of the same goal.

Presidents back to Washington have struggled with how to deal the press. John Adams’ solution was the signing and enforcement the Alien and Sedition Acts, which forbid “False, scandalous, and malicious” writing against the government, Congress or president, or any attempt “to excite against them…the hatred of the good people of the United States, or to stir up sedition.”

Adams’ predecessor, George Washington, was initially met with what we might describe today as fawning coverage. He was universally beloved, and in the (brief) era before political parties, there was no concrete opposition to push back against his administration. This changed–quickly–with opposition forces coalescing around Thomas Jefferson. Partisan newspapers began to pop up around the country. Washington told Adams in 1796 that one reason he did not want to serve a third term in office was that he felt, “disinclined to be longer buffeted in the public prints by a set of infamous scribblers.” In a letter to a friend, Washington similarly called press criticism “diabolical” and “outrages on common decency.” But Washington kept his criticisms private.

The Alien & Sedition Acts, passed under Adams, were meant to quell criticism of the administration. Washington privately expressed support for Adams’ actions. Although Adams said little publicly of the Acts, his wife Abigail wrote her friend that many newspapers were “criminal” and ought to be brought to court. “Yet daringly do the vile incendiaries keep up…the most wicked and base, violent and culminating abuse…nothing will have effect until Congress passes a Sedition bill.”

Adams’ vice president–and the de facto leader of the opposition party–Thomas Jefferson, quietly left the capitol to go home to Monticello. He and other Republicans feared the Acts could mean the end of their republic. “For my own part,” Jefferson wrote in a letter, “I consider these laws as merely an experiment on the American mind to see how far it will bear an avowed violation of the Constitution…if this goes down, we shall immediately see attempted another act of Congress declaring that the President shall continue in office during life [and] reserving to another occasion the transfer of succession to his heirs…”

The Alien and Sedition Acts proved incredibly unpopular. They helped to elect Thomas Jefferson, and made John Adams a one term president.

As president, Jefferson also disliked the press. He wrote “our newspapers, for the most part, present only the caricatures of disaffected minds. Indeed, the abuses of freedom of the press here have been carried to a length never known or borne by any civilized nation.” Still, Jefferson possessed an undying faith in the common sense of the people. He acknowledged:

“The firmness with which the people have withstood the late abuses of the press, the discernment they have manifested between truth and falsehood, show that they may safely be trusted to hear everything true and false, and to form a correct judgment between them.”

All public figures faced a barrage of what Donald Trump might call fake news, although in many cases in the late 1700s and early 1800s, the news was actually fake. Adams was accused of sending Charles Coteworth Pinckney to London to procure four mistresses, two for each man. “I do declare upon my honor,” he wrote a friend, “if this is true General Pinckney has kept them all for himself and cheated me out of my two.” Thomas Jefferson, on the other hand, faced rumors of a relationship with one of his slaves–rumors that were denied at the time but, of course, were later proven true.

Since the birth of the country, the American executive has struggled with how to handle the press–a struggle that continues to this day. But the importance of a free press is generally acknowledged by the executive branch. Seven years after he left the White House, Thomas Jefferson–who faced attacks, both true and false–stated: “Where the press is free, and every man is able to read, all is safe.”

 

 

Thanks to: 

John Adams by David McCullough

Thomas Jefferson: The Art of Power by Jon Meacham