How Impeaching a Supreme Court Justice Works
Following allegations of impropriety relating to financial disclosures and conflicts of interest, Rep. Alexandria Ocasio-Cortez introduced articles of impeachment against two conservative Supreme Court Justices, marking the first attempt to impeach a Justice in more than two centuries.
“The unchecked corruption crisis on the Supreme Court has now spiraled into a Constitutional crisis threatening American democracy,” said Ocasio-Cortez, a Democrat from New York, in a press release on Wednesday. “Justices Clarence Thomas and Samuel Alito’s pattern of refusal to recuse from consequential matters before the court in which they hold widely documented financial and personal entanglements constitutes a grave threat to American rule of law.”
[time-brightcove not-tgx=”true”]Alito has drawn scrutiny for an inverted flag flown outside his house, which allegedly symbolizes support for the Jan. 6 Capitol attack. Alito has said the flag was briefly raised by his wife. Thomas has been criticized for his failure to disclose trips paid for by Republican mega donor Harlan Crow. He has also refused to recuse himself from cases related to former President Donald Trump, despite his wife’s political involvement in support of Trump as his Administration sought to overturn Joe Biden’s victory in 2020. He has claimed that he did not have to report these trips because they were “personal hospitality from close personal friends, who did not have business before the Court.” (In June, Thomas disclosed that Crow paid for travel expenses in Bali and California.)
Eight months ago, the Supreme Court adopted its own code of conduct to alleviate the blowback against the Court in the last year, though the regulations are unenforceable.
Read More: Breaking Down the Supreme Court’s Ethics Rules as Justices Come Under Fire
Ocasio-Cortez filed her resolution following the Supreme Court’s decision that Trump and former Presidents have some degree of immunity from prosecution for official acts, which could affect the criminal cases against Trump.
In all of American history, only one Supreme Court Justice has ever been impeached. Here’s how the process works and what happened the only time it succeeded.
How impeachment works
Like in any other impeachment process—including for Presidents and judges—the power to impeach a Supreme Court Justice first lies with the House of Representatives. A House legislator must introduce an article of impeachment before a vote is held. If a majority of the House votes in favor of impeachment, the articles then move to the Senate for a trial. Two-thirds of the Senate must then vote to convict, which would remove the Justice from the court.
Read More: What the Supreme Court’s Immunity Decision Means for Trump’s Criminal Cases
It will be effectively impossible for Ocasio-Cortez’s articles of impeachment to pass the Republican-led House, experts say. Not only would legislators in favor of impeachment have to overcome the conservative stronghold, but they would also have to work with the House Judiciary Committee, which is led by Republican Rep. Jim Jordan of Ohio.
Frank Bowman, a professor at the University of Missouri School of Law, calls Ocasio-Cortez’s impeachment efforts against the Justices “performative.”
“This is not the way you proceed if you’re serious,” he says. “If you’re serious, you develop a factual record. You allow representatives of the impeached or the suspected impeachable official to participate, at least in some way, in the process of investigating the question. You deliberate carefully before you engage the attention of the full House.”
Has a Justice ever been impeached?
It has been relatively common in American history for judges to be impeached compared to other federal positions. “Judges, under the federal system, are appointed during good behavior, effectively for life, and therefore it’s really the only mechanism for getting rid of a bad judge,” says Bowman. At least 15 federal judges have been impeached, according to the United States Courts. Only eight judges have been convicted, though experts say some others have resigned before their cases went to trial or any official articles of impeachment could be brought forward to them.
But it’s only happened once for a Supreme Court Justice. The last time articles of impeachment were filed against a Justice was in 1804. Samuel Chase, who had been serving on the nation’s highest court since 1796, was impeached by the House and tried in the Senate over his partisan rhetoric. “We think of [Supreme Court Justices] as being purely appellate judges who sit on only a few appellate cases every year. But Justices in those days did lots of other stuff,” says Bowman. “They were in circuit, meaning they went around the country, sometimes even acting as trial judges. And in that capacity, the Justice was vocally affiliated with the Federalist Party and vocally opposed to Thomas Jefferson’s Democrats.” Chase was ultimately impeached on the basis that he refused to “dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases,” according to the United States Senate. He was also accused of promoting his political beliefs.
Although a majority of the Senators voted that Chase was guilty, legislators still fell short of the two-thirds majority. Chase was acquitted by the Senate in 1805 on all counts.
While Chase was the only Supreme Court Justice ever impeached, there have been other ethics scandals in the past. Former associate Supreme Court Justice Abe Fortas was up to become Chief Justice in 1968 when critics pointed out that Fortas had received $15,000 to teach university seminars. The money came from former clients of a law firm whose cases could potentially reach the Supreme Court. “There were no ethics laws at the time requiring disclosure, but Fortas was forced to acknowledge that was an inappropriate thing for him to do, and the result was he withdrew his nomination as Chief Justice,” says Michael Gerhardt, constitutional law professor at the University of North Carolina’s School of Law.