Unsurprisingly, Justice Samuel Alito and Clarence Thomas have become lightning rods for critics of the United States Supreme Court. Their unethical and partisan behavior has helped drive support for the Court to historic lows.
Remedies for what Alito and Thomas have done have been hard to find. Several have already been tried.
For example, only recently has the Court adopted a code of ethics. Even so, many commentators think it is toothless.
Calls for the Justices to recuse themselves in the face of blatant conflicts of interest have been ignored. Congressional efforts to address those problems, like Senator Sheldon Whitehouse’s Supreme Court Ethics, Recusal, and Transparency Act, stand little chance of passage.
Amidst all these efforts, frustration has been building with a Court that seems oblivious and imperious.
On Wednesday, Representative Alexandria Ocasio-Cortez proposed another response to Alito’s and Thomas’s ethical transgressions when she introduced articles of impeachment in the House of Representatives. Impeachment should not be used as just another tool of political combat, but in the case of Alito and Thomas, it is justifiable.
Before looking at the allegations in those articles, let’s look at the history of the impeachment of Supreme Court Justices.
Over the entire course of American history, only one Supreme Court Justice has ever been impeached. That was Associate Justice Samuel Chase, who was impeached by the House in 1804.
Chase, who had served on the Supreme Court since 1797, was, according to a United States Senate report on the Chase case, “A staunch Federalist with a volcanic personality….” Before his impeachment, “Chase showed no willingness to tone down his bitter partisan rhetoric after Jeffersonian Republicans gained control of Congress in 1801.”
The House impeached Chase because he refused “to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases.” His accusers “hoped to prove that Chase had ‘behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation of the law of treason before defense counsel had been heard.’”
And, in a foreshadowing of contemporary allegations against Alito and Thomas, the final article of impeachment accused Justice Chase “of continually promoting his political agenda on the bench, thereby ‘tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan.’”
In March 1805, the Senate acquitted Samuel Chase on all counts.
Fast forward to May 1965, when, as historian Brett Bethune notes, “Visitors to the Indianapolis Speedway were greeted with a massive billboard declaring, ‘Save our Republic! Impeach [Chief Justice] Earl Warren…. By 1966,’” Bethune notes, “there were hundreds of similar signs placed on streets, roads, and highways all across the nation.”
The impeach Earl Warren movement was driven by the ultra-right wing John Birch Society, which denounced Warren as a liberal activist judge who had led the Court astray in rulings like Brown v. Board of Education and Miranda v. Arizona.
Despite the John Birch campaign against Warren, he was never impeached.
The next serious threat of impeachment targeted Abe Fortas, who, like Chase, was an Associate Justice. In 1968, he was nominated by President Lyndon Baines Johnson to succeed Earl Warren.
Alas, he never got that position, and one year later, Fortas resigned.
Recall that Fortas had accepted $20,000 to consult for a foundation working on civil rights and religious freedom. “Unfortunately for Fortas,” as Adam Cohen put it in a New York Times article, “The businessman who started the foundation that had retained him, Louis Wolfson, was investigated by the Justice Department for financial improprieties and eventually convicted of securities violations. In 1966, Fortas quit the foundation and returned all the money he had accepted.”
In 1969, Cohen says, “Life magazine reported on Fortas’s long-extinguished ties to Wolfson’s foundation and on the money he had returned, and a scandal ensued. When Life’s revelations appeared, Republicans in Congress demanded that Fortas resign…. What was remarkable by today’s standards is that Democrats demanded his ouster, too.”
Cohen notes that, “With his own party turning against him, Fortas was in danger of being impeached by the Democratic-controlled House. Fortas insisted he had done nothing wrong, but he stepped down… explaining that ‘the welfare and the maximum effectiveness of the court to perform its critical role in our system of government are factors that are paramount to all others.’”
Cohen argues that the Fortas case provides an apt lens through which to see Alito’s and Thomas’s much more blatant transgressions. And that may help explain why AOC is seeking their impeachment.
As the New York Times notes, the articles of impeachment she filed “contend, among other allegations, that Justices Alito and Thomas were obligated to recuse themselves from cases related to Mr. Trump’s and his allies’ efforts to overturn the results of the 2020 election — Justice Thomas because his wife participated in those efforts and Justice Alito because flags associated with the efforts flew outside Justice Alito’s homes.”
In addition, “The articles of impeachment against Justice Thomas allege that he committed high crimes and misdemeanors…by failing to disclose gifts from the billionaire Harlan Crow, and by not recusing himself from cases in which his wife, Virginia Thomas, is accused of having financial and legal interests.”
The articles AOC filed against Justice Alito allege that he committed high crimes and misdemeanors by “refusing to recuse himself from the election-related cases.” They also say that Alito violated a law requiring Justices to recuse themselves if their “impartiality might reasonably be questioned” and accuse him of failing to disclose luxury travel paid for by Paul Singer, a Republican donor with interests before the court.”
What Fortas did more than 50 years ago cannot hold a candle to the conduct of Alito and Thomas.
Ultimately, the prospects of succeeding in removing them are slim to none. However, it is hard to imagine more impeachment-worthy conduct than they have displayed.
As AOC rightly observed, “The justices’ actions posed ‘a grave threat to American rule of law, the integrity of our democracy and one of the clearest cases for which the tool of impeachment was designed.’”
By initiating that process, the congresswoman has sent a powerful message of condemnation that reminds all Americans that even in our deeply divided society, there are still things worth condemning and standing up for.