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U.S. Supreme Court Justice Clarence Thomas. (Photo: Stetson University).

Scarinci: Impeaching a Supreme Court Justice

By Donald Scarinci, January 16 2023 12:22 am

More than 1.2 million people have signed a petition calling for the impeachment of Clarence Thomas. The petition cites Justice Thomas’s vote to overturn Roe v. Wade, as well as potential conflicts of interest caused by the political activism of his wife, Virginia (Ginni) Thomas.

Removing Justice Thomas from the Court will not be easy or even likely since Republicans took control of the House of Representatives. In over 200 years, the only Justice to be impeached was Associate Justice Samuel Chase in 1805. The House of Representatives did pass Articles of Impeachment against him, but he was acquitted by the Senate.

Judicial Impeachment Process

The Constitution, Article II, Section 4, addresses the impeachment of federal officials ranging from the President to federal judges. It provides: “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.”Under the Constitution, the House of Representatives has the power to impeach, while the Senate has the power to try impeachments. The House has impeached 19 individuals, including 15 federal judges, one senator, one cabinet member, and two presidents. The Senate has conducted 16 full impeachment trials. Only nine public officials, all of whom were judges, have been removed from office.

Another provision in the Constitution, Article Three, explains that judges are supposed to remain in office only while in “good Behavior,” which is a very vague standard. As a result, the charges against judges facing impeachment have described a wide range of inappropriate behavior.

President Thomas Jefferson targeted Justice Chase, who was impeached but not convicted, after Chase criticized Jefferson’s decision to repeal the Judiciary Act of 1801. That act effectively eliminated many newly created federal judgeships held by Federalists, a political party opposed by Jefferson.

Officially, the articles of impeachment included several other actions taken by Chase as a lower court judge, accusing him of failing to perform his duties. More recently, federal judges have been impeached for conduct such as engaging in improper business relationships with litigants that appeared in their court, favoritism, perjury, and abuse of power.

The most recent attempt to impeach a Supreme Court justice occurred in 1970 when conservatives sought to oust liberal justice William O. Douglas. In spearheading the call for impeachment, House Minority Leader Gerald Ford acknowledged that the effort was, at least in part, politically motivated.

“The only honest answer,” he stated, “is that an im­peachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; con­viction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to re­quire removal of the accused from office.”

Following a six-month Congressional investigation, a House subcommittee voted against launching impeachment proceedings. In reaching its decision, the committee issued a report addressing, among other issues, the behavior for which judges can be impeached, concluding that impeachable offenses included criminal conduct and abuse of public duty.

Potential Impeachment of Clarence Thomas

Notwithstanding anything Justice Thomas may have done, Republican control of the House of Representatives likely makes talk of impeachment academic.

The conduct that otherwise may have warranted further investigation relates to his wife—longtime conservative activist Ginni Thomas. Clarence Thomas voted against a Supreme Court decision to compel the release of Donald Trump’s records regarding the January 6 insurrection and his attempt to overturn the results of the 2020 presidential election. Critics argue that Thomas should have recused himself given that his wife sent text message to members of the Trump Administration supporting its efforts to overturn the election.

Federal law, 42 U.S.C. § 455, sets forth when federal judges must recuse themselves. It states: “Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality may reasonably be questioned.” However, even if Justice Thomas should have recused himself from cases involving the 2020 election, the statute has no enforcement provision. The only available option is impeachment.

 

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