AOC’s Move on Thomas and Alito Has All the Right Historical Echoes

Article 3 of the Constitution, which defines the roles and powers of the court system, says: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”

Congresswoman Alexandria Ocasio-Cortez is taking the Framers at their word; this week, she introduced articles of impeachment against both Clarence Thomas and Samuel Alito.

While the Republicans on this court have engaged in a decades-long steady torrent of corruption—from Chief Justice John Roberts’s wife making over $10 million hustling lawyers into law firms that practice before the court to Clarence Thomas’s million-dollar vacations and mother’s rent-free life, Samuel Alito’s paid speeches and luxury vacations with billionaires, Neil Gorsuch’s and Amy Coney Barrett’s fealty to the fossil fuel industry that his mother and her father served, and finally to Brett Kavanaugh’s alleged gambling debts—Congress has so far overlooked its obligation to, as Article 3, Section 2 says, “regulate” the Supreme Court.

AOC’s impeachment resolution calls out the two most egregious examples, Thomas and Alito, for failing to disclose gifts from billionaires with issues before the court. She also nails them both for refusing to recuse themselves from cases where they have obvious conflicts, like Thomas’s wife participating in January 6 and Alito’s flag-waving support of the effort to end our democracy.

Most recently, we’ve just discovered that billionaire-with-interests-before-the-court Harlan Crow even paid for the Thomases to take a luxury, all-expenses-paid trip to Putin’s hometown.

Any other federal judge in America would have been taken off the bench had he or she behaved the way these two have.

Right-wing media is laughing at Ocasio-Cortez, pointing out that since Republicans control both the House Judiciary Committee and the entire House itself, her impeachment resolution won’t even make it out of committee. They shouldn’t be so sure of themselves.

First, there’s a very real possibility—in part because of this court’s extremist rulings, particularly overturning Roe v. Wade—that the House will fall to Democratic hands next January and her effort could have a new, albeit uphill, life.

But second, and more important, it’s possible that her highlighting the corruption of at least two Republicans on the court may cause some of the others—particularly Roberts, Barrett, and Kavanaugh—to become more moderate in their rulings going forward.

The last time the Supreme Court experienced such a crisis of confidence with the American people was in the 1935–1937 era, and the way it resolved is fascinating.

Back then, four of the justices—Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter—were collectively known as the Four Horsemen. They were invariably joined by one of the other justices—most frequently Owen Roberts—to strike down President Franklin D. Roosevelt’s popular New Deal legislation that attempted to address unemployment and poverty.

The Four Horseman claimed to be originalists or “strict constructionists” who somehow could read the Founders’ intent from the Constitution, disregarding the historical reality that the Founders were not even remotely of a single mind.

For 40 years during the preceding Lochner era, the court had struck down dozens of state laws protecting workers, including women and children. During the period between 1897 and 1929, the court was ruling largely with the booming industrialist economy, and its conservative members saw the labor movement as disruptive rather than positive. However, with the onset of the Republican Great Depression, these industrialists lost popular support—but the Supreme Court had not caught up with popular opinion.

In 1935, the court ruled that both the Agricultural Adjustment Act and the National Industrial Recovery Act were unconstitutional. The rulings gutted a large piece of Roosevelt’s New Deal legislation.

Shortly before Roosevelt was reelected in 1936, the court went even further and struck down a New York state law that established a minimum wage for women and children, in Morehead v. New York ex rel. Tipaldo. The pendulum of popular opinion swung against the court almost overnight.

In 1937, the National Labor Relations Act and the Social Security Act were on their way to the court. Considering how the Four Horsemen had ruled during FDR’s first term, Roosevelt knew that he needed to do something or risk losing both pieces of legislation along with the collapse of his entire New Deal agenda.

With the New Deal on the line, Roosevelt—much like AOC today—went on the attack. On February 5, 1937, just months after his landslide reelection, he announced his plan: He asked Congress for the authority to appoint one new justice for each justice then on the bench over 70 years old.

In 1937, the average life expectancy for men in the United States was only 58 years. The average age of the Supreme Court justices at the time was 71 years old, and six of the justices were 70 or older. A book mocking the court, called The Nine Old Men, “was rapidly moving up the bestseller lists.”

FDR directly called into question the “capacity of the judges themselves” to dispose of the growing number of cases facing federal courts. He came up with a plan that would have immediately given him six appointments to the Supreme Court and up to 44 appointments for federal lower courts. Roosevelt argued that “a constant and systematic addition of younger blood will vitalize the courts.”

On March 9, 1937, Roosevelt told the nation that the court was ruling not just against himself and Congress but against the will of the American people, themselves. “The courts,” Roosevelt boomed, “have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.” Roosevelt’s critics were aghast at his plans. They claimed he was trying the “pack the court” with justices who would simply be his yes-men.

Congress never voted on the plan. It’s unclear whether it would have succeeded, or if a more moderate plan that would have given him only two or three justices might have succeeded. Historians still debate the issue. But the point is that the need for it vanished virtually overnight. It ended with a decision on the minimum wage, a crucial component of the New Deal.

On March 29, 1937, a Washington state minimum-wage law came before the court in West Coast Hotel Co. v. Parrish. The law in question was nearly identical to a New York state law that that had come before the court a year earlier. But this time, Justice Roberts abandoned the Four Horsemen to uphold Washington state’s minimum-wage law in a 5–4 decision.

In a series of 5–4 decisions two weeks later, the court upheld the National Labor Relations Act as constitutional. The ruling was astonishing, and Roberts was the justice who’d swung the court to the left. Less than two months later, the court declared that Social Security was constitutional.

Roberts’s about-face in West Coast Hotel was referred to at the time as “the switch in time that saved nine” (the court’s reputation, that is). And it’s possible—although not definitively probable—that we could see a similar dynamic at play today.

As we saw with the two efforts to impeach former President Trump, any effort to remove a high official from office by that route is a long shot. Only one Supreme Court justice has ever been impeached—Samuel Chase in 1805—and he was notoriously corrupt (and often drunk).

But as FDR’s successful effort to take on the Republicans on the court showed, sometimes the very process of highlighting their unpopularity and inappropriate judgment can lead to a positive change. The country owes Representative Ocasio-Cortez a big thanks and an overwhelming reelection this fall.