The Supreme Perils Of Impeachment
REP. Jerry Nadler, slated to be Judiciary Committee chairman in the new Democratic-controlled House, has now backed off threats to impeach Supreme Court Justice Brett Kavanaugh. That’s a wise decision, especially when you recall what happened the first time the House impeached a Supreme Court justice, 213 years ago. Samuel Chase joined the court in 1796. He was a revolutionary war patriot and a sharp legal mind. He was also a man of strong views and strong words (and striking appearance: tall and florid, nicknamed Bacon Face).
Chase was a die-hard Federalist, the conservative party of the day. He had presided over the trial and conviction of muck-raking journalist James Callender under the notorious Sedition Act, and a trial of armed tax resisters (they had threatened a federal marshal, which bucked their offense to treason).
Chase lectured grand juries on the dangers of “mobocracy” — which he equated with the Democratic-Republican Party of Thomas Jefferson.
Unfortunately for Chase, the election of 1800 was a blue wave. Jefferson won the White House and his followers flipped both houses of Congress. Only the federal judiciary remained in Federalist hands.
The new chief justice, John Marshall, had been confirmed by the lame-duck Federalist Senate only weeks before he himself swore in president Jefferson. But maybe the Democratic-Republicans could purge the court.
In the spring of 1803, Jefferson wrote an ally in the House about Chase’s “mobocracy” crack, which he called “seditious. It is better,” he added piously, “that I should not interfere.”
The House took the hint, forming a committee in 1804 to investigate Chase’s conduct. By year’s end, the House impeached him.
Some Jeffersonians saw impeachment as simple political housekeeping. “You hold dangerous opinions,” one Democratic-Republican congressman told a Federalist colleague. “We want your offices for the purpose of giving them to men who will fill them better.”
But the Constitution says impeachment must be for high crimes and misdemeanors. So the House accused Chase of specific offenses, including his “mobocracy” remark and his conduct of his sedition and treason trials.
Chief Justice Marshall was more alarmed for the Supreme Court’s independence than at any point in his career. He even suggested, in a letter to Chase, giving Congress a veto over court decisions: better that than letting them knock off justices at will.
Chase’s trial in the Senate in February 1805 was high drama. Vice President Aaron Burr presided, even though he had been indicted for murder for killing Alexander Hamilton the previous summer.
Chase’s lead lawyer, Luther Martin, was a high-functioning alcoholic — and one of the best attorneys in the country. The House manager was Rep. John Randolph, a brilliant eccentric, with a highpitched soprano voice.
Chase’s prospects brightened as his trial unfolded. A juror in the sedition trial testified that he thought Chase had been a fair judge. Burr grilled Chief Justice Marshall: Had he ever found Chase “tyrannical” or “overbearing”? Marshall cautiously and cunningly declined to characterize him, saying only, “I will state the facts.”
After a month of hearings, the Senate voted. One sick Federalist senator was carried in on a couch in case his vote was needed. It wasn’t. The Senate cleared Chase on every count by solid margins.
Jefferson would not try the impeachment option again. When Federalist justices died or retired, he replaced them with Democratic-Republicans.
But Marshall converted them all to his views. Chase served until he died in 1811.
The Chase impeachment is a warning to posterity. His enemies controlled all the elective branches of the federal government, and he had committed questionable acts during his years on the Supreme Court. Even so, removing him struck the Senate as a bridge too far.
If Democrats want a court more to their liking, they will have to do what they — and Republicans — have done for the last 30 years: appoint like-minded men and women when they have the chance — and hope they stay that way.
‘ Removing[ Supreme Court Justice Chase] ’ struck the Senate as a bridge too far.
Richard Brookhiser is a senior editor of National Review and the author of “John Marshall: The Man Who Made the Supreme Court,” out from Basic Books this week.