Why the First Supreme Court Impeachment Was the Last (So Far)
On February 4, 1805, Vice President Aaron Burr gaveled into session the impeachment trial of Justice Samuel Chase for high crimes and misdemeanors. The stakes were impossibly high. No Supreme Court justice had ever been impeached. Every decision would establish precedent and shape future proceedings—so that the aftermath of the trial lasted far longer than the participants could have possibly imagined, down to the present day. Our ideas about impeachment and its role in the justice system can be directly traced to Chase’s trial, over two hundred years ago.
Chase certainly made an excellent target. Outside of his family, no one liked him. When George Washington nominated Chase to the high court in 1796, many Federalists questioned whether he had the temperament to serve as a justice, even though he belonged to their party. Over the next several years, their concerns proved prescient. District Judge Richard Peters wrote in 1804, “Of all others, I like the least to be coupled with him [when Chase “rode the circuit” to serve as a district judge]. I never sat with him without pain, as he was forever getting into some intemperate and unnecessary squabble.” His cantankerous and querulous nature was so extreme that it earned him the nickname “Old Bacon Face.”
Bad humor was one thing, but Chase’s behavior on the bench was also highly partisan. He had campaigned openly for John Adams in 1800 and relished handing down extreme sentences to defendants accused of sedition against the Adams administration. Most recently, he had “endeavor[ed] to excite the odium of the said grand jury, and of the good people of Maryland, against the government of the United States” during his jury instructions.
Despite all this bad behavior, Chase might have gotten away with it. Chief Justice John Marshall had shown a real interest in maintaining the status quo and President Thomas Jefferson had finally had the opportunity to appoint his first justice in 1804. Because justices served much shorter tenures at the time, Jefferson had every reason to suspect he would appoint more before the end of his term. Although Jefferson hated Chase, he was content to let sleeping dogs lie.
John Randolph of Roanoke had other ideas. Randolph had entered the House of Representatives in 1799 and had served as the Jefferson administration’s de facto spokesperson for a time. In time, however, Randolph came to split with his fellow Virginian on several issues and saw his influence waning as Jefferson’s sons-in-law, both also serving in Congress, acquired more clout. Randolph viewed an impeachment trial as an opportunity to consolidate his power.
On January 5, 1804, Randolph introduced articles of impeachment against Chase, without previously notifying the administration or leadership in the House. The House formed a committee to consider the proposal. Two months later, the committee recommended impeachment and the House voted to impeach Chase, 73 votes to 32, with almost no debate. At the end of the session, Randolph put forward 7 articles of impeachment. The language described Chase’s behavior as criminal, rather than just improper. The phrasing of the articles set up the impeachment process as a criminal conviction.
Congress then went into a lengthy recess, as it did every summer, and planned to reconvene on November 5. Justice Chase spent the recess assembling the best legal team he could find, including former Attorney General Charles Lee and Luther Martin, who was widely regarded as the best defense attorney in the country.
Chase was not the first federal judge to be impeached—indeed, on March 12, 1804, the very day that the House voted to impeach Chase, the Senate concluded the impeachment trial of another judge. John Pickering was a Federalist and a U.S. district judge in New Hampshire. In recent years he had shown signs of significant mental decline and had taken to self-medication with extreme amounts of alcohol. Pretty much everyone agreed he had no business serving on the bench, but Jefferson’s Republicans were in a bit of a bind. They had tried to get Pickering to resign, but he refused. They then appealed to Federalists in New Hampshire, but they would not intervene. Finally, Republicans asked Pickering’s family for help, but they closed ranks and wouldn’t force Pickering to retire.
With their options exhausted, the Republican-controlled House voted to impeach Pickering, and in March 1804, the Senate, also Republican-led, picked up the case. It made everyone queasy: Republicans had no interest in convicting someone of a criminal act for what, in nineteenth-century parlance, they called “insanity.” Instead, they drafted articles of impeachment that focused on Pickering’s intoxication:
That whereas for the due, faithful, and impartial administration of justice, temperance and sobriety are essential qualities in the character of a judge, yet the said John Pickering, being a man of loose morals and intemperate habits . . . did appear on the bench of the said court for the administration of justice in a state of total intoxication, produced by the free and intemperate use of intoxicating liquors.
Federalists worried this phrasing might be a slippery slope. If they removed a judge for intoxication, might Republicans next try to remove a judge for Federalist political affiliations? The Senate ultimately convicted Pickering, 19 votes to 7, and removed him from the bench. But not a single Federalist voted yes.
Thus, when Congress reconvened and the Chase trial began, Federalists suspected that Republicans were trying to expand the powers of impeachment to remove anyone they didn’t like. On the other side, Republicans were convinced that Federalists would never act in good faith to remove a judge, even when it was clear that person no longer belonged on the bench. Therefore, the Senate was not just adjudicating Chase’s guilt or innocence, but also establishing precedent about the purpose of impeachment. What was impeachment for? Was impeachment and conviction only appropriate in response to criminal acts or did the Constitution’s reference to “Misdemeanors” include other bad behavior?
Randolph chose to present the case against Justice Chase as though it was a criminal one, thinking that might alleviate the discomfort some of the Federalists had felt with Pickering’s removal. Accordingly, when Chase stood to deliver his own opening remarks on February 4, 1805, he responded accordingly: Like the lawyer he was, he delivered a detailed rebuttal to the impeachment charges, spending several hours responding to every single article with evidence and rational thinking.
After an adjournment of a few days, the trial resumed. Over the next eleven days, the House impeachment managers and Chase’s defense team presented their cases and called their witnesses. The locals who had filled the galleries gradually got bored and filtered out.
On February 20, the impeachment managers began their closing statements. The evidence had been relatively unremarkable, but everyone present knew that it all came down to the final speeches. This wasn’t actually a criminal court, so there were no well-established burdens of proof.
Reps. Peter Early of Georgia and George Campbell of Tennessee delivered the closing statements on behalf of the House impeachment managers. Two Federalist senators sitting in the jury box said that their speeches were so boring the galleys completely emptied—and most of Early and Campbell’s House colleagues left, too.
Then it was the defense team’s turn. Charles Lee and Joseph Hopkinson delivered remarks, before giving the floor to Luther Martin for a final address.
Martin was, in the words of his biographers, “of only medium height, with thinning hair and features distinguished only by the ravages of alcohol, a voice far from melodious and a sputtering, saliva-spraying delivery.” His alcohol consumption was so well known, he had the nickname “lawyer Brandy Bottle” in the Maryland courts. His grammar was poor and his clients could never count on him to show up sober, but when he did, his talents were unmatched. Henry Adams best captured Martin’s two sides: “the rollicking, witty, audacious Attorney-General of Maryland, . . . drunken, generous, slovenly, grand; bull-dog of Federalism, . . . the notorious reprobate genius.”
For five hours on Saturday, February 23 and another two hours on Monday, February 25, Martin showed up. He held the audience spellbound and demonstrated why he was the best trial lawyer in the country. He dismantled the articles of impeachment, from start to finish. He also challenged the Senate to consider two important questions: First, if Chase were such a threat to the impartial administration of justice, why had it taken Republicans five years to bring forth charges? Second, how would the outcome of this case impact the independence of the judiciary and the separation of powers?
After Martin concluded, Early confessed to a senator that he was “weary of the cause and intimated his regret the impeachment was ever brought forward.” As that senator noted in his diary, “I believe he spoke the language of the majority of the House.”
On the final day of the trial, February 27, 1805, the Senate chambers were full; it seemed everyone in Washington wanted to be present for Randolph’s closing rebuttal. Presiding judge Aaron Burr, whose tenure as vice president would be over in just a few days since he had been unceremoniously booted off the 1804 Republican ticket, decked out the room for the occasion. His perch was covered in crimson velvet. Directly in front of Burr, the senators sat on two rows of benches. Their desks were also covered in crimson velvet.
On either side of the dais, the House impeachment managers and defense counsel sat at two tables covered in blue velvet. The cabinet, including Secretary of State James Madison and Secretary of the Treasury Albert Gallatin, had gathered in a separate viewing box to the right of the dais. Other House members who attended sat on semicircular risers covered in green cloth that flanked the sides of the room. The ladies in attendance sat on benches behind the senators, set up for the occasion. The rest of the audience crammed into the normal gallery that loomed above the chamber floor. Not a seat was left empty.
Randolph was a bit of a strange character. He didn’t really have friends and his family was shrouded in scandal. A genetic abnormality or a childhood disease had stunted his development, preventing the growth of facial hair or his voice from dropping. He had developed a reputation for acerbic wit and a sharp tongue that he regularly employed to cut his colleagues in the House down to size. His boy-like face and nasally, high-pitched voice somehow made his attacks more devastating.
In House debates, Randolph had often unleashed a torrent of abuse, personal attacks, and insults upon anyone who challenged his positions. This strategy was remarkably effective and often forced reluctant representatives to line up behind the Republican position. The audience on February 27 no doubt hoped to witness a similar show.
Randolph stood up from his desk and started by complaining that he had lost many of his notes—not a great way to inspire confidence in his delivery. Rather than refuting the defense’s interpretation of impeachment, he denounced it. He damned his opponents and employed the most colorful rhetoric he could muster.
Over the next several hours, observers noted that Randolph became increasingly erratic. For weeks he had struggled with a gastrointestinal illness. To combat the symptoms, his doctor has proscribed opium-laced wine. Randolph took a sip between nearly every sentence and by the end of his speech, he was slurring his words and could barely stand.
John Quincy Adams, one of the senators (and jurors), described the event in his diary. Randolph
began a speech of about two hours and a half, with as little relation to the subject matter as possible—without order, connections, or argument; consisting altogether of the most hacknied commonplaces of popular declamation, mingled up with panegyrics and invectives upon persons, with a few well express’d ideas, a few striking figures, much distortion of face, and contortion of body, tears, groans and sobs, with occasional pauses for recollection, and continual complaints of having lost his notes.
After Randolph concluded, Burr gaveled the Senate into recess until noon on March 1. When the hour arrived, the galleys were once again packed. Senator Uriah Tracey of Connecticut was ill and carried into the chamber on a couch to cast his votes.
Burr read the first charge, then the roll was called alphabetically. One by one, the senators cast their vote. Adams: “Not Guilty.” Anderson: “Guilty.” Baldwin: “Not Guilty.” The roll fell silent for a moment as a quiet murmur rumbled through the chamber. Abraham Baldwin was a Republican and the first defection. There were 25 Republicans and 9 Federalists. They needed 22 votes to convict. Three defections would be an acquittal.
The roll continued. Ellery: “Guilty.” Franklin: “Guilty.” Gaillard: “Not Guilty.” Another pause. Defection number 2. Giles: “Not Guilty.” Defection number 3. Chase would be acquitted on the first charge.
After the votes were cast for Article I, Burr read Article II and repeated the process. For the next two hours, Burr read every single article and the senators cast their votes one by one. The audience in the gallery remained in their seats and silent.
Chase was acquitted on every charge. The Federalists didn’t have a single defection and six Republicans joined them in voting “not guilty.” Perhaps most damning, all 34 senators voted “not guilty” on Article V.
Randolph’s theatrics might have worked in the House, but the senators took their role as jurors seriously. His hysterical attacks clashed with the solemnity of the event and made it easy for senators to hang the failed impeachment around his neck. Two days later, JQA wrote in his diary: “This was a party prosecution, and has issued in the unexpected and total disappointment of those by whom it was brought forward. It has exhibited the Senate of the United States, fulfilling the most important purpose of its institution, by putting a check upon the impetuous violence of the House of Representatives.”
After his acquittal, Justice Chase modified his behavior. The remainder of his tenure on the bench was unremarkable. He served until his death on June 19, 1811.
While JQA gloated that the Senate had checked the passions of the House, the long-term ramifications were more powerful than he, or anyone, anticipated.
After the rapid succession of the Pickering and Chase impeachments, the House didn’t impeach another judge until 1830 and was much more circumspect going forward. The Chase proceedings effectively established that judges could not be removed for unpopular decisions, which helped protect a relatively apolitical system of justice.
The ongoing development of judicial ethics, the passage of further legal code, and a more defined appeals process protects defendants against much of Chase’s objectionable behavior. For example, five of the articles of impeachment against Chase pertained to his oversight of the 1800 sedition trial of the “scandalmonger” James Callender. The articles alleged that Chase had prevented a fair trial by ordering a biased juror seated, refused to allow the testimony of defense witnesses, required only the defense counsel to put questions in writing, and repeatedly interrupted and harassed defense counsel.
Today, there are standard procedures for jury selection, witness selection, and judge-attorney interactions. For example, the official code of conduct for federal judges requires that they “be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.” The code of conduct also disqualifies judges from overseeing proceedings if “the judge’s impartiality might reasonably be questioned,” including instances when “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
Furthermore, at the time of Callender’s trial, the federal judiciary included district courts and the Supreme Court—but not yet an appellate level. If similar charges were brought today, the case would still be heard at the district level, but the defendant would have the right to appeal the outcome if the judge showcased demonstrably biased behavior.
Still, a few significant gaps remain. The code of conduct mentioned above was adopted in 1973, and it does not apply to the highest court in the land. Supreme Court Justices are largely free to do as they please; they self-police conflicts of interest or ethical questions. Self-imposed restrictions on their behavior are kept secret unless they themselves choose to make them public.
Justices are also serving much longer tenures than in the eighteenth century when the Constitution was drafted and ratified. In the first few decades of Supreme Court history, most justices served few than ten years and there was regular turnover. Justices regularly held other positions after the bench, including the first chief justice, John Jay, who served six years as governor of New York.
All told, the House has impeached 14 federal judges since 1789 and the Senate has removed 8 of them. The charges have included waging war on the U.S. government during the Civil War, improper business relationships with litigants, favoritism, tax evasion and criminal conviction, perjury, and solicitation of a bribe. Among the acquitted judges, the articles of impeachment cited charges of favoritism and abuse of power. The Senate has never removed a Supreme Court justice.
The relatively tiny number of federal judges removed from office via impeachment raises the question, what did the Framers mean when they wrote the Constitution’s clauses regarding impeachment? Impeachment is defined in the Constitution as “Treason, Bribery, or other high Crimes and Misdemeanors.” Not high crimes “or” misdemeanors—that “and” is important. Treason, bribery, and high crimes are lumped together. Misdemeanors is rendered a separate part of that sentence by the inclusion of “and.” If the Constitution had said “treason, bribery, or other high crimes or misdemeanors,” it would suggest that “misdemeanor” is a purely legal term.
A Universal Etymological English Dictionary, published by Nathan Bailey in 1775, defined “misdemeanour” as “a behavior one’s self ill; an Offence or Fault.” This was not far from the definition in Samuel Johnson’s and Noah Webster’s famous dictionaries. Both then and now, the word “misdemeanor” can refer to a category of crime defined in legal code or to an improper or bad action.
Rep. James Elliot made a similar argument as the House considered Chase’s impeachment. “To misdemean is to behave ill; a misdemeanor is an act of ill behaviour; and the Constitution limits the duration of the office of a judge to the period of his good behaviour.” But, Elliot continued, not “every act which, strictly speaking, may be considered as misconduct, ought to subject a judge to impeachment; the misconduct must possess some degree of criminality.”
Elliot concluded that Chase’s actions had deprived one of the defendants of a fair trial as guaranteed by the Constitution, which was evidently close enough to criminality. “I think it cannot be denied that Judge Chase denied to Callender a Constitutional privilege; and . . . the reasons which he gave for the denial were repugnant to the most plain and obvious principles of law.”
As important as it is to consider what the Framers meant when they drafted the impeachment clauses, we must also ask ourselves how we choose to interpret the impeachment clauses today. Thanks to the three presidential impeachments in the last quarter century, the public is well acquainted with the constitutional background of impeachment and the workings of the impeachment process. Now is as good a time as any to ask: Should Supreme Court justices be removed only when they commit high crimes? What if they do something so inappropriate, so unacceptable—but not illegal—that we simply cannot tolerate their continued service on the highest court in the land?
These questions aren’t just a fun intellectual exercise. Let’s say, hypothetically, that evidence continues to emerge implicating Ginni Thomas, wife of Justice Clarence Thomas, in the efforts by Trump supporters to overturn the 2020 election. And let’s further suppose that a case involving some aspect of those efforts or the January 6th insurrection comes before the Supreme Court.
Under these circumstances, most judicial ethics experts and reasonable observers would likely agree that Justice Thomas should recuse himself, but he has shown no interest in doing so thus far. He has already been involved in several Supreme Court actions that have in some way touched on the 2020 election. Most strikingly, when the Court in January rejected Trump’s attempt to keep various White House records from being sent to the House January 6th Committee, Thomas was the only justice who disagreed; he would have sided with Trump.
There are two potential remedies to this problem. First, Congress could pass legislation mandating that the code of conduct for federal judges applies to the Supreme Court. Justice Roberts has insisted that the Supreme Court can take care of itself and this code is unnecessary. Thomas’s refusal to recuse might offer a strong argument to the contrary.
Second, Congress can start to treat impeachment as a suitable response to wildly inappropriate, if not outright illegal, behavior. Seeking to remove a misbehaving justice from office via impeachment should be understood not as a drastic measure to be taken only under the direst circumstances but as a constitutional recourse that is measured and appropriate. Surely the Framers, who were so concerned about responsibility and holding leaders accountable, would not have wanted the American people to be impotent in the face of judicial malfeasance.
To reconceive of judicial impeachment in this way would force us to revisit the precedents set by Samuel Chase’s impeachment. Two years after Chase’s acquittal, Jefferson wrote that the whole debacle was “a farce which will not be tried again.” He was right—so far.