Could Congress impeach Supreme Court justices for perjury?
(The Hill) – The U.S. Supreme Court’s decision last month to overturn the 50-year constitutional right to abortion prompted an outcry from activists who said they were misled during the justice’s confirmation hearings.
Conservative justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, who voted to overturn Roe V. Wade in a 5-4 vote, have been accused of misleading the public and members of the Senate about their intentions during their respective confirmation hearings before the Senate Judiciary Committee.
The calls to impeach the justices for misleading the public have been led by Rep. Alexandria Ocasio-Cortez (D-N.Y.), who last month said “there must be consequences” for upending democratic institutions with false statements.
“If we allow Supreme Court nominees to lie under oath and secure lifetime appointments to the highest court of the land and then issue — without basis, if you read these opinions — rulings that deeply undermine the human civil rights of the majority of Americans, we must see that through,” she said on NBC.
Several other House Democrats have joined in the calls to get answers on whether the justices misled the public about overturning Roe.
Sen. Dick Durbin (D-Ill.), however, said removing a justice is “not realistic” when he was asked if Justice Clarence Thomas should be impeached.
The House can file articles of impeachment for a federal judge with a majority vote, but the Senate must secure a two-thirds majority vote to remove the judge.
As a result, any impeachment effort for a Supreme Court justice would face an uphill battle. Democrats now have 50 Senate seats, but not all 50 of those Democrats would be likely to vote to impeach a Supreme Court justice.
Only one Supreme Court justice has ever been impeached.
In 1805, the House impeached justice Samuel Chase, but the Senate acquitted him.
Chase, a federalist with a “volcanic personality,” was accused of bitter partisan rhetoric, refusing to dismiss biased jurors and of excluding or limiting defense witnesses in at least two cases, according to the Senate’s historical recounting of the event on its website.
The House labeled Chase an “electioneering partizan” and successfully passed articles of impeachment, according to the Senate’s history. But in the Senate, Chase was acquitted on eight articles, which “thereby effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions,” according to the Senate’s website.
Convincing the public and lawmakers that Kavanaugh, Barrett and Gorsuch should be removed because of perjury could be difficult because their comments could be interpreted in different ways.
According to Factcheck.org, Gorsuch in his 2017 hearing said Roe was a “precedent” that deserves standing, but also refused to say how he would rule on a case challenging it.
“If it looks like I am giving hints or previews or intimations about how I might rule, I think that is the beginning of the end of the independent judiciary, if judges have to make, effectively, campaign promises for confirmation,” Gorsuch said.
During his confirmation hearing in 2018, Kavanaugh said Roe was an “important precedent” that has been “reaffirmed many times,” including through 1992’s Casey V. Planned Parenthood.
“That makes Casey precedent on precedent. It has been relied on,” Kavanaugh said, according to Factcheck.org.
Kavanaugh also said he would be open to new arguments on any case, adding he has an “open mind” and that a justice should “listen to all arguments.”
Barrett in her 2020 hearing said she would follow the doctrine of stare decisis, which means following a precedent, but also said Roe was not a “super precedent.”
“Scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively, it does mean that it’s not a case that everyone has accepted and doesn’t call for its overruling,” she told the Senate.
Impeachment is typically reserved for perjury, fraud, gross misconduct, conflict of interest or high crimes.
Since 1804, 15 federal judges have been impeached and a majority of them removed from office, with three of them impeached and convicted for perjury.
Alcee L. Hastings, who served on the U.S. District Court for the Southern District of Florida, was impeached and removed in 1989 after he was accused of soliciting a bribe to reduce the sentences of two mobsters. He was also accused of lying and falsifying evidence at the trial.
Judge Walter Nixon on the Southern District of Mississippi was impeached and removed from office in 1989 after he lied to a grand jury about his attempt to influence the prosecution of a business associate’s son.
More recently, Thomas Porteous Jr. on the Eastern District of Louisiana was impeached and removed in 2010 for corrupt conduct and for lying to the Senate and the FBI to obtain a federal judgeship.