SCOTUS – History First

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When the Judiciary Act of 1801 was repealed (and replaced with the Judiciary Act of 1802, eliminating the circuit judgeships that Adams had created), Supreme Court Justice Samuel Chase–a Federalist with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

Addressing 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!

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.

On 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 the 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

(to listen to a version of this piece in podcast form, click here)

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.