Thread by @TheTattooedProf

For a historian, when present-day news events touch on something you've researched, the reaction is usually "Hey! Cool! I know some stuff about this!" followed immediately by "Holy crap, I can't believe this is still a thing. AAAARRRGGG." Anyhoo....impeachment.

(Thread incomng)

1. Lots of people, based on this week's shitshow, have asked "can a Supreme Court Justice be impeached?" And the answer is YES; the Constitution says any officer of the federal government who commits "high crimes and misdemeanors" can be impeached (indicted) & tried by the Senate

2. Not only CAN a SC Justice be impeached, but one has, actually. Samuel Chase, a Maryland Federalist (and by all accounts, a supreme jerkface), was impeached and tried in 1804-early 1805. He was acquitted, but there's more to the story. I WROTE ABOUT THIS THING ONCE WOO HOO 😁

3. Chase's impeachment was actually part of a larger attack by the Thomas Jefferson administration on the federal judiciary, largely populated by Federalist-appointed judges (a bunch of new ones from a judicial expansion passed right at the end of John Adams's presidency).

4. Jeffersonians accused the Feds. of court-packing, arguing that the Federalists, having been defeated by the popular will in the election of 1800 (somewhat of an exaggeration, tbh), were using the undemocratic judiciary to cling to power by any means necessary. Sound familiar?

5. By the end of Jefferson's first term, the Jeffersonian Republicans settled on a strategy of eroding the power of the judiciary through the use of impeachment, a constitutional tool they believed could help them restore a proper democratic order to the federal govt.

6. Knowing the risks involved, the first target had to be a slam-dunk case. The Jeffersonians moved to impeach John Pickering, the Federaist judge of the fed district court in Portsmouth, NH (no relation to Mass. Federalist Timothy Pickering, btw). Pickering was highly partisan,

7. but he was also a raging alcoholic, and when he showed up for court proceedings (not always guaranteed), he would indulge in inebriated haragues from the bench. Moreover, it was obvious that Pickering was mentally ill, and it seemed to be getting worse.

8. The Jeffersonian majority in the House voted for articles of impeachment against Pickering in early 1804-he was tried in the Senate, convicted on a party-line vote, and removed from office. His replacement was one of the Jeffersonian "house managers" of the impeachment trial.

9. As you'd imagine, the Federalists focused on thie blatantly partisan angle. Were alcoholism and insanity "high crimes and misdemeanors?" Pickering had been too ill to even be present in the Senate to defend himself. Here's a sampling of Fed'ist reaction to this "mock trial":

10. With this first step in their impeachment strategy a success, the Jeffersonians turned to a bigger target: Maryand Federalist Samuel Chase, an Associate Justice on the US Supreme Court. Jeffersonians saw the SC, under Chief Justice John Marshall, as an existential threat

11. After Marshall's decision in 1801's Marbury v Madison, which establishe the principle of Judicial Review, Jefferson & the Republicans were convinced that Marshall's court would subvert the very foundations of democracy. Impeaching its most vocally Federalist judge, though...

12. ...could fire a warning shot across Marshall's bow, and stop what the Jeffersonians would have called "activist judges" in today's parlance. Samuel Chase was a particularly irritating judge-he was sarcastic, overtly partisan,berated opponents from the Bench, just a big jerk.

13. But he was also a really good lawyer and judge. And being an asshole isn't a "high crime" or "misdemeanor." And as rankling as Chase's partisanshp and behavior was, it was far from clear whether it could be an impeachable offense. But the Jeffersonians went ahead.

14. In late 1804, the House voted 8 articles of impeachment against Chase. In the 1805 Senate trial, though, it quickly became clear that Chase was no Pickering. He defended himself, he wasn't a drunk, nor was he insane. In other words, Chase was a much more difficult target.

15. Chase was ultimately acquitted by the Senate, and the failure of his impeachment has been seen as a milestone event in the establishment of judicial independence. Jefferson's impeachment strategy failed, and was abandoned. But there was all sorts of fallout.

16.The impeachments of Pickering and Chase convinced many leading New England Federalists that their region's secession was preferable to remaining in what was quickly becoming a corrupted, "slaveocrat"-ruled faux Republic. A plot was hatched, recruiting former VP Aaron Burr (!)

17. (I wrote an article about it here! It's a fascinating story, even if it ultimately failed. This secessionist venture tells us a lot about the early American republic's political culture.)
jstor.org/stable/3125268

18. Also, we can see the failure of Jefferson's impeachment strategy as a blow for judicial independence, but I would argue it was the opening skirmish of a battle for the federal judiciary that's continued ever since. The judiciary has always been political, and often partisan!

19. So if Kavanaugh is confirmed, it would in this sense be simply the most explicit nod towards partisanship on the federal judiciary we've seen. It would not be "making the courts partisan." That ship sailed a loooong time ago.

20.But I would caution against using the impeachment of Samuel Chase (and of Pickering) to argue that the overtly partisan nature of Chase's (and Pickering's) impeachment should warn us about "partisan meddling" with the Court.

21. (I will bet you dollars to donuts there is a self-described "centrist liberal" drafting that exact essay right now.)

22.Again, the judiciary has always been partisan, the courts have always been political. If you don't think so, go read the Dred Scott decision, or Lochner, or Bush v. Gore and get back to me.

23. Neither Pickering nor Chase had been credibly accused of crimes like attempted rape. Moreover, there was no evidence they had repeatedly perjured themselves, as there is for our current nominee to the Court. That distinction matters a lot.

24. If Kavanaugh is confirmed & subsequently impeached, then, we should bear in mind that since there's compelling evidence of actual criminal activity (his perjury is clear), this puts things on new ground. There's a *much* stronger case, which distinguishes this from 1804-05.

25. So, yes, we have historical precedent for impeaching a SC Justice, but only in the most general sense. The partisanship echoes that of 1804-05, but the facts of the case & grounds for impeachment today are far more substantial than they were in these earlier cases. /FIN

PS-sorry about all the typos. It's #NationalCoffeeDay and I've had several espressos this morning. 🙂☕️☕️☕️☕️☕️☕️