Impeachment is a concept codified in our Constitution as a mechanism for the federal government to police itself. Lately it seems we hear cries of "impeach!" on a regular basis, but of course very little ever comes of it. There were cries for impeaching president Obama almost before he even took office. In all of U.S. history, only two presidents (Johnson, Clinton) and one Supreme Court Justice (Chase) have ever been impeached
. None were successfully convicted of any of the charges.
Although presidents and judges can
be impeached, it is interesting that the language for that is in Article II, Section 4
of the Constitution, which is the section defining the Legislative branch (the presidency):
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.
So the Constitution is fairly clear on what constitutes grounds for impeachment: treason, bribery, or other high crimes and misdemeanors. The Constitution also specifies some requirements for Supreme Court Justices. From Article III, Section 1
(again: bold-face mine...)
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
President Thomas Jefferson apparently took that to heart when in 1804 he persuaded Congress to impeach Supreme Court justice Samuel Chase
President Thomas Jefferson, alarmed at the seizure of power by the judiciary through the claim of exclusive judicial review, led his party's efforts to remove the Federalists from the bench. His allies in Congress had, shortly after his inauguration, repealed the Judiciary Act of 1801, abolishing the lower courts created by the legislation and terminating their Federalist judges despite lifetime appointments; Chase, two years after the repeal in May 1803, had denounced it in his charge to a Baltimore grand jury, saying that it would "take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy[.]" Jefferson saw the attack as indubitable bad behavior and an opportunity to reduce the Federalist influence on the judiciary by impeaching Chase, launching the process from the White House when he wrote to Congressman Joseph Hopper Nicholson of Maryland asking: "Ought the seditious and official attack [by Chase] on the principles of our Constitution . . .to go unpunished?"
Virginia Congressman John Randolph of Roanoke took up the challenge and took charge of the impeachment. The House of Representatives served Chase with eight articles of impeachment in late 1804, one of which involved Chase's handling of the trial of John Fries. Two more focused on his conduct in the political libel trial of James Callender. Four articles focused on procedural errors made during Chase's adjudication of various matters, and an eighth was directed at his “intemperate and inflammatory … peculiarly indecent and unbecoming … highly unwarrantable … highly indecent” remarks while "charging" or authorizing a Baltimore grand jury. The Jeffersonian Republicans-controlled United States Senate began the impeachment trial of Chase in early 1805, with Vice President Aaron Burr presiding and Randolph leading the prosecution.
All the counts involved Chase's work as a trial judge in lower circuit courts. (In that era, Supreme Court justices had the added duty of serving as individuals on circuit courts, a practice that was ended in the late 19th century.) The heart of the allegations was that political bias had led Chase to treat defendants and their counsel in a blatantly unfair manner. Chase's defense lawyers called the prosecution a political effort by his Republican enemies. In answer to the articles of impeachment, Chase argued that all of his actions had been motivated by adherence to precedent, judicial duty to restrain advocates from improper statements of law, and considerations of judicial efficiency.
The Senate voted to acquit Chase of all charges on March 1, 1805. He is the only U.S. Supreme Court justice to have been impeached.
So the question is: Does bad behavior or blatant bias constitute grounds for impeachment? The most recent uproar with a Supreme Court justice involves Antonin Scalia's comments during a case regarding the Civil Rights Act
Scalia said that each time the Voting Rights Act has been reauthorized in the past 50 years, more and more senators supported it, even though the problem of racial discrimination at the polls has decreased over that time. "Now, I don't think that's attributable to the fact that it is so much clearer now that we need this," he said. "I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes."
One could argue that since voting is a federally protected right, anyone trying to subvert that right is breaking federal law; therefore, Justice Scalia is subject to impeachment. That is a fairly tenuous argument. There's also the notion that since judges are instructed to use "good behavior", that bad behavior violates the Constitution. That was Jefferson's angle, and it failed. It would very likely fail in this case as well. Of course - that supposes that the Republican-led House would impeach Scalia, something that will never happen.
So for now, Scalia is free to make his outrageous remarks and allow his blatant personal bias to influence his decisions. Without a Democratic majority in the House willing to attract the bad publicity that articles of impeachment would create, there is no chance that he will be removed from the bench by anyone other than the Grim Reaper. Considering he's 77, that may not be too far off.