The Case for Impeaching the Rehnquist Five

By Nathan Newman, NLG National Vice President

Should the National Lawyers Guild work with political allies to seek the impeachment of the five rightwing members of the Supreme Court?

It is probably fair to say that with Bush v. Gore[1] last fall, combined with the Court majority's savage assault on civil rights, gender equality, labor unions and economic regulations, most progressives feel that those Justices are justly condemned for rightwing judicial activism that is more about politics than disinterested judicial judgement.

But impeachment? Many progressives, including some in the NLG, see such a campaign as an assault on the status of an independent judiciary, a campaign that would undermine the Court's role in protecting individual rights, and as a misuse of the impeachment power for mere political differences. Further, they argue such a campaign would marginalize the National Lawyers Guild and accomplish little.

I think such views show a misguided respect for the role of courts in the US political system. They also miss the strategic benefits such a campaign would have for progressive work across the country. An impeachment campaign is eminently practical, not in the sense that the Supreme Court members will be impeached next year or the year after, but such a campaign's educational value will be used to make the illegitimacy of the Court relevant to Congressional, Senate and Presidential elections in a way it has failed to be in most election years.

More broadly, such a campaign of impeachment needs to be mounted to contest the legal terrain that is settling across the land, where affirmative action, federal protection of civil rights, and a host of other property regulations are not only declared to be "unconstitutional" but are therefore seen as illegitimate. If we do not mount a campaign to declare the Supreme Court itself illegitimate, they will win the ideological fight to declare our social and political goals to be illicit.

Still, before outlining any substantive case for impeachment of the Rehnquist Five- any political criticism of which would no doubt gain general agreement - it is probably better to start with the heart of disagreement over the proposed campaign's wider strategic and legal implications.

To state the problem boldly, the Warren Court left a number of legacies, but possibly its most pervasive one is an odd reverence among liberals and progressives for judicial review by the Supreme Court- odd, because the history of judicial activism in our country has been one of almost unmitigated reaction and odd because there is no logical reason to expect much else from an institution whose members are chosen as they are under our Constitution. Despite hypocritical odes to "judicial restraint", the present Court is one of the most activist in history. In the first 200 years after the Constitution was ratified, the Supreme Court struck down only 127 federal laws. In the past six years alone, the Rehnquist court has struck down 28 federal laws- seven times that historic average.[2] Progressives may denounce individual decisions, but because of their reflexive defense of the general idea of judicial review, they have failed to make the broader condemnation of this far-reaching rightwing activism by the Rehnquist Court.

With that reverence for judicial review has come a historical amnesia of the long history of opposition by progressives to Supreme Court power and against its immunity from legislative restraint. Such an amnesia is most striking for those in the National Lawyers Guild, since the organization was founded in the 1930s largely as a challenge to the Supreme Court's judicial activism undermining the New Deal. In 1937, at one of the first meetings of the New York chapter of the Guild, the 300 lawyers in attendance endorsed "packing the Court" to overrule the reactionary Justices and advocated amending the constitution to "limit the power of judicial review of legislation." At the first National Convention four days later, the national organization endorsed a constitutional amendment to protect social legislation from judicial veto.[3]

This was hardly an exceptional instance of progressives denouncing the courts, which has extended from abolitionists denouncing the Court for Dred Scott's[4] endorsement of expanding slavery to labor unions denouncing strike injunctions. But even at the most establishment level of the law, there has historically been since the inception of the Constitution a widespread assumption that judges could be impeached for the politics of their judicial decisions, even if the requirement of a two-thirds vote in the Senate made such removals rare.

So to argue the case for impeachment, we need as a first step to revive the historic progressive critique of judicial activism. The next section of this article will start with that core issue of why more progressives should abandon their loyal defense of judicial activism given the systematic reactionary effect the Supreme Court has had on American politics, the Warren Court being a relatively minor deviation from that historical reality. This is an argument for making the drive to impeach the Rehnquist Five a broader debate in society on the limits of judicial power from a progressive viewpoint.

The following section will give more historic legal detail of the use and acceptance of political impeachment of judges as a normal restraint on excessive judicial power. Since a range of legal thinkers from Chief Justice Marshall to former President and Chief Justice Howard Taft thought such impeachments legitimate (if not always desirable), it would seem odd for the National Lawyers Guild to deem such an argument too "radical."

Finally, the article will summarize the reasons why the National Lawyers Guild and other progressive allies should mount its impeachment drive against the five Supreme Court Justices in the current majority.

Against Judicial Activism

Some more recent skepticism of progressive judicial intervention might be dismissed as hindsight revulsion at the conservative swing of intervention with the Rehnquist Court, but even at the height of the Warren Court's activism, at least one progressive Justice, namely Hugo Black, saw such a conservative offspring of Warren era activism as not only a possibility but almost an inevitability.

Even as he shared the progressive values of his Brethren, especially his colleague William Douglas, Black became increasingly skeptical of their invocation of general "Due Process" or natural law-sounding justifications for striking down the illiberal laws scattered across the political landscape. In Griswold v. Connecticut[5] - the precursor to Roe v. Wade[6] - he laid out his condemnation of Justices substituting their values for the judgement of legislators or for the plain text of the Constitution's Bill of Rights, the only basis Black saw justifying judicial review.

In Griswold, he readily admitted agreement with the "graphic and eloquent strictures and criticisms fired" at Connecticut's contraception law, agreeing with everything "except their conclusion that the evil qualities they see in the law make it unconstitutional."[7] That a judge might find a law repulsive was no justification for second-guessing legislators who could exercise similar judgements - "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."[8] He criticized his colleagues for dangerously reviving the Lochner[9] era of judicial intervention:

The Due Process Clause with an 'arbitrary and capricious' or 'shocking to the conscience' formula was liberally used by this Court to strike down economic legislation in the early decades of this century...That formula, based on subjective considerations of 'natural justice,' is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights.[10]

Even at the high point of liberal dominance in 1965, Black could recognize that liberals could easily rue the day they reopened the door to Lochner-style judicial power. If liberal judges could race ahead of democratic support for certain principles in such a period, it was relatively easy to expect judges in a more conservative period to race in the opposite direction.

This was especially true given Black's general disdain for the wisdom of judges over the wisdom of politicians or the population that elects those representatives. Fundamental was Black's experience as one of the first lawyers in his native Birmingham to represent average workers injured on the job or in other accidents.[11] There, he experienced the fact that federal judges and appellate judges were the ones mostly likely to protect corporate interests and overturn judgements won for plaintiffs at trial[12], so he had early personal experience in the limits of progressive expectations for the judicial branch.

While he saw a clear but limited role for judges in enforcing fundamental political rights to assure that the legislative process reflected the democratic will, Black's views highlight why judicial intervention is usually a losing bet for progressives.

Historic Reactionary Role of the Supreme Court

The clearest reason for progressives to reject judicial intervention is the empirical reality that the Supreme Court has been an engine of reactionary government for most of its history, overturning progressive legislation with great will while justifying repressive decisions by state and federal governments quite readily.

The early Marshall Court was a ready friend of foreign slavers and white property owners, even as it willingly violated every treaty and property right of Indian nations conquered by the new nation. Each key case in the period was mostly a disgrace- in The Antelope[13], the United States government seized a pirate slave ship but the Supreme Court forced the restoration of the slaves to their "rightful" foreign owners. In Fletcher v. Peck[14], the Court with its expansive understanding of the contract clause prevented the state of Georgia from recovering property sold by the state based on bribery of the legislature. Yet this respect for treaty and property rights was empty in regards to the Indian nations, whether in allowing the state of Georgia to seize Cherokee lands and suppress its political and cultural institutions in contradiction of treaty rights[15] or in completely disregarding all property titles granted by Indian tribes, noting that they were denied the "the power to dispose of the soil at their own will" in favor of the principle that "discovery gave exclusive title" to the white conquerors.[16]

Of course, judicial review advanced to an even more reactionary level with the Taney Court, helping to precipitate the Civil War with the Dred Scott[17] decision. In some ways, though, the more amazing interventionist decision is the Prigg decision[18]- mandating the right of Southerners to cross state lines to kidnap suspected escaped slaves without any interference by state courts that might be concerned to investigate whether the kidnapped person was in fact a former slave. Against the lie that the South was the big defender of states rights, the reality was that the South used judicial intervention by the US Supreme Court to de facto extend slavery into Northern states. It was the reaction in the North against that judicial interventionism three years after Dred Scott that elected Abraham Lincoln into office, not on a platform of abolishing slavery in the South, but of refusing to allow the South to use the courts to extend it anymore beyond its borders. The post-Civil War court was hardly much of an improvement. With a few minor exceptions,[19] the Court's intervention undermined Constitutional and legislative attempts to overcome the legacy of slavery and discrimination faced by blacks. Plessy v. Ferguson's[20] acquiescence to state government's imposing "separate but equal" is more renown, but Plessy would not have faced discrimination on Louisiana railroads if the Supreme Court had not earlier struck down the Civil Rights Acts of 1875 which banned discrimination in all public accommodations, including railroads. The 14th Amendment had been the major fruit of the Civil War, itself precipitated by the Supreme Court's intervention, and the Court essentially made it a dead letter for blacks in the Civil Rights Cases.[21] Once again, the Court used judicial intervention as a weapon to undermine democratic attempts to restrain oppression of African Americans.

On the other hand, for rising Robber Baron corporations the 14th Amendment was anything but a dead letter- in fact, it became the Magna Carta of unrestrained elite economic power. In 1886, corporations were recognized by the Supreme Court as "persons" under the due process clause[22] of that amendment, setting the stage for the whole Lochner era of wholesale judicial intervention striking down social legislation at both the state and federal levels. While not every progressive piece of legislation was struck down[23], the Court's forays into judicial intervention were almost uniformly[24] reactionary, from striking down overtime limitations[25] to overturning legal bans on anti-union "Yellow Dog" contracts[26]. Twisting the Sherman Act and disregarding direct legislative mandates of the Clayton Act, the Court would uphold judicial injunctions against unions, including the jailing[27] and bankrupting of union officials[28], the destruction of key strikes and boycotts across the country,[29] and even injunctions against union organizers talking with workers as "an effort to subvert" existing contractual relations.[30]

With this history of reaction, it is no wonder that progressives understood by the 1930s that the best thing for progressive change was to get the judiciary out of social policy altogether. This had been the thrust of labor exceptions in the Sherman Act, but passage of the Norris-LaGuardia in 1932 enunciated the policy that no longer would courts "bring down into slavery those who are attempting to negotiate for what they believe..."[31] With the invalidation of the first New Deal laws[32], this sense that court tyranny was restraining the democratic freedom of men and women to govern themselves became more general. The withdrawal of the Court from judicial review of economic regulations signaled by West Coast Hotel Co. v. Parrish[33] and made mostly complete in follow-up decisions[34] was hailed as a massive gain for progressive social change.

Until 1954, this was the Court's saving grace- it kept out of the way of reforms passed at the federal and state level. As well, save for a few stabs at defense of civil liberties[35], the Court gained no credit for its rubber stamping of Japanese-American internment camps[36], the destruction of socialist-leaning unions[37], and McCarthyite witchhunts.[38] But if it was little better than the elected branches in these issues, at least it was no worse - a vast improvement over the history of the Court.

So if a case is to be made for progressive judicial intervention, it will have to rest with the Warren Court alone, in the singular period from Brown v. Board[39] to (with a little stretch) Roe v. Wade and the last gasp of its spirit.

The Accident of the Warren Court & Why Judges Systematically Reflect Elite Class Interests

Yet basing a defense of judicial intervention on less than twenty years out of over 210 years of overwhelmingly reactionary Court decisions seems a thin reed for progressive hopes. And even those nineteen years were based on a combination of two phenomena, both unlikely to be repeated- namely Democratic Presidential rule for twenty-eight out of thirty-six years from 1932 to 1968 and two self-admitted "mistakes" by Eisenhower in his appointments of Earl Warren and William Brennan. If anything is surprising is how hard, despite those facts, it was to consolidate Court control by the liberals.

Given the serendipity of the results of intervention in that period- and the unlikelihood of repetition - it would seem that pure pragmatism would encourage liberals to quietly welcome the results that they liked of the period, while tut-tutting the general idea of judicial intervention, especially with increasing conservative consolidation of Court control.

But the problem goes deeper, since just the nature of the selection of judges under our Constitution promotes an elite-minded judiciary. In times of stalemated politics in the electoral realm, "professional" credentials from elite institutions trump experience or sensitivity for representing progressive values. Any nominee needs to jump through a dual hoop- support by the President and the ability to withstand filibusters in the Senate, where relatively tiny minorities of the population (especially non-urban states) are able to block the majority will. Whatever benefits such minority vetoes may have in often forcing supermajoritarian support for legislation and nominees, it is hardly a recipe for expecting judicial nominees likely to act more progressively than majoritarian politics. Such a process, rather than putting a premium on honest political debate of philosophies, instead encourages the search for candidates without a paper trail.

It is an almost political perversity for progressives to put their hopes in a judicial process where progressivism has depended on a Blackmun or a Souter or a Warren or a Brennan turning out better than expected (or intended by their sponsors). Worse, the problem is that even when they do, their progressive turns on the Court are inevitably distorted by the elite source of their own nominations and the class values they reflect.

Segregation and the Failure of Warren Court Judicial Intervention

That the Warren Court confronted Jim Crow in the South in Brown v. Board is of course laudable, but the fact that they did so reflected the interests of national elites as much as the interests of justice. In a time of Cold War conflict where Southern Apartheid was an embarrassment in the ideological combat with the Soviet Union in a period of decolonization, the Brown decision was not a challenge to the elite but a fulfillment of its needs.[40] Brown was not a counter-majoritarian check on electoral politics, but was instead the beginning of a solution to anti-democratic structures of American politics that the Supreme Court itself had helped set into place a century earlier.

By gutting the power of the national government to combat segregation a century earlier, the Supreme Court had created the basis for the disenfranchisement of Southern blacks and the rise of single-party conservative Democratic control of the region. With such single party control, Southern Democrats in the Congress ended up with maximum seniority and disproportionate power compared to regions of the country with more political competition and less incumbent protection. So given this structure of politics, it fell to the Court to clean up the political mess it had itself created earlier now that national interests demanded an end to the embarrassment of state-sponsored segregation.

While the Warren Court made real efforts to implement its professed goals of formal desegregation, it moved so slowly that it never reached the point of disturbing the upper-income suburban economic elite. By the time lower courts faced the reality that only inter-district desegregation efforts would address the combined racial and economic basis of segregation, it was too late- the Burger Court in Milliken v. Bradley[41] would block any attempt to extend desegregation efforts out to the suburbs. Instead, urban whites and blacks were pitted against each other over declining urban property tax revenues, a process that only accelerated the unraveling of broader progressive democratic politics.[42] By 1973, when faced squarely with the role of disparate education spending in furthering inequality, the Burger Court in San Antonio Independent School District[43] addressed the economic class issue the Warren Court had dodged for its whole existence - namely whether desegregation would go beyond formalistic lines and confront the economic oppressions lying at the base of racial segregation. The Burger Court answered in the negative, notably finding no constitutional right to equal education - seen as a bulwark of democracy since the founding of the Republic - in the same year it declared abortion a fundamental right.

Now, it may seem harsh to condemn the Warren Court for its failures to be more interventionist in an article condemning judicial activism, but the Court in this period compares unfavorably with a Congress that was aggressively addressing not only racial and sexual discrimination in the form of the Civil Rights Acts of 1964 and 1965 but also economic inequality with the whole panoply of Great Society programs. And ultimately, the Warren Court greatest failure was to concentrate on its rather half-hearted Brown-based judicial intervention when it could probably have done greater good with an unequivocal license for Congressional efforts promoting civil rights. By this I mean that, while the Warren Court overturned Plessy, an act of judicial restraint from the post-Reconstruction period, it failed to overturn the Civil Rights Cases precedent, the more critical act of judicial intervention that had crippled Reconstruction. While the Court would uphold the Civil Rights Act of 1965 in its Katzenbach v. Morgan[44] decision, Justice Brennan's majority decision failed to forthrightly overturn the Civil Rights Cases or clearly restore expansive proactive powers to Congress to combat discrimination - a decision that set us up for the present day farce of Garrett[45] and Morrison[46] where the conservative majority could cite the still living precedents of 19th century judicial interventionists to strike down those Congressional laws.[47]

Making Things Worse- How Warren Court Intervention Undermined Economic and Social Equality

If the Warren Court refused to directly address economic equality in the desegregation cases, it directly made things worse in other areas such as labor rights and, indirectly, may have crippled democratic mobilizations in its decisions on sex discrimination and abortion.

In the area of labor rights, the fulcrum for progressive agitation for the withdrawal of judicial intervention before the New Deal, the restoration of judicial supremacy and the gutting of the right to strike was brought full circle by none other than Justice Brennan in his Boys Market decision.[48] Despite Taft-Hartley, the basic right to strike without fear of court injunction had largely survived, but Brennan's majority opinion overturned the Court's own precedents[49] to allow an injunction against a union striking during the life of a collective bargaining agreement. As Justice Black noted in dissent, not only did this violate workers rights under the law, but it reflected a taste by the Court for substituting itself for Congressional power: "When the law has been settled by an earlier case then any subsequent 'reinterpretation' of the statute is gratuitous and neither more nor less than an amendment: it is no different in effect from a judicial alteration of language that Congress has placed in the statute."[50]

The naive belief of Brennan and his colleagues in the inevitable progressive nature of the courts is shown in Brennan's comments that undermining Norris-LaGuardia was acceptable in 1970 because in the past the law "was responsive to a situation totally different from that which exists today" compared to the period when "the federal courts generally were regarded as allies of management."[51] Since such a situation apparently would never arise again, it was acceptable to gut the Norris-LaGuardia Act, since unions could now depend on the kindness of strangers in the federal courtroom. That Brennan could believe this in 1970, as Nixon appointees were coming on to the Court, just reflects the incredible blindness of the Warren Court stalwarts of how their judicial intervention would be used to license reactionary activism in later years.

Even in areas where the Courts made unambiguously progressive decisions, as in its sexual equality decisions, they were largely reflecting social changes underway that would rapidly have been reflected in legislation without their actions. In fact, by acting preemptively, the Court may have short-circuited more comprehensive legislation and the Equal Rights Amendment. In Reed v. Reed[52] and Frontiero v. Richardson[53], the Court used the Due Process clause to make sex a "suspect classification." Yet even Justices concurring in the decisions noted the danger of these decisions. As Justice Powell argued in his Frontiero concurrence:

The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States...By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment.[54]

The irony is that if the Court liberals had wanted to advance women's rights most comprehensively, they would have joined Rehnquist's dissent. The resulting reaction probably would have sped passage of the ERA before opposition was gathered to defeat it in the critical last states. The idea that judicial restraint in such areas encourage comprehensive responses is not just rhetoric, but shown in the area of gender equality in the Court decisions on discrimination based on pregnancy. In key decisions, the Court found that women had neither constitutional[55] nor statutory[56] protection against discrimination based on pregnancy. The result was a political mobilization that resulted in the Pregnancy Discrimination Act (PDA)[57] which comprehensively banned discrimination on the basis of pregnancy, childbirth, and related medical conditions.

Which brings us to Roe, the flipside of the debate over protection for the right to be pregnant- or rather not the flipside, since the Court in its infinite wisdom separated out abortion into a completely different constitutional sphere from gender and pregnancy rights into the zone of privacy rights. Notably, where the constitutional and legislative protections against sexual and pregnancy discrimination applied to insurance,[58] a "liberty" right to privacy around abortion created no similar mandate for equal treatment when funding issues were involved, allowing governments to treat funding for abortions differently from other medical issues and deny them to indigent women.[59]

As Justice Ruth Bader Ginsberg has noted, Roe interrupted a political process of abortion liberalization that was underway, energizing a conservative Christian backlash and, by placing abortion in a limited "privacy" box, limited its reach.[60] The other result of the Court's constitutionally tailored right for economically well-off women to have abortions was to allow economically conservative professional women to join the Reagan coalition, knowing that the courts would prevent their coalition partners from impacting their reproductive freedoms. If poor women had not been left on their own in the legislative arena, a much broader coalition for abortion rights would have sustained itself.

More broadly, the separation of abortion, pregnancy and sexual discrimination into different constitutional and legislative spheres has frustrated the democratic process fully grappling with the integrated issues of the tension between social reproduction in the home and women's participation in the workplace. Instead of a broader discussion of real "choice", as in transforming the nature of work, career paths, family leave and so on which would allow women (and men) a real choice between abortion and having children at certain points in their lives, we've ended up with a splintering of politics over abortion between women committed to a home life and professional women, a polarization well documented by writers like Kristin Luker in her Abortion and the Politics of Motherhood.[61] Sociologist Theda Skocpol has noted how the earlier period of Lochner judicial activism extended differential protections to women and thereby frustrated democratic debate and deformed the shape of the emerging welfare state in the United States.[62]

The Aftermath of the Warren Court: Empowering Reactionary Judicial Activism

All of this is not surprising, since because the judiciary has little ability to enforce broad social change in the face of resistance by administrative and legislative bodies, it has far more ability to frustrate progressive social change than the ability to further it. This was the historic role of the Supreme Court and the post-Warren Court Justices have largely continued this tradition.

If the Warren Court was slow and erratic in its furthering of desegregation, the Rehnquist Court has been decisive in rolling back affirmative action at the local[63] and federal[64] level. In interpreting civil rights legislation, the Court has frustrated legislative intent in wildly narrowing their meaning in cases like Wards Cove[65] and most recently in Sandoval.[66] In the case of Wards Cove, the Congress was so outraged at the Court's reckless disregard for Congress's intent that in the 1991 Civil Rights Act, the Congress not only repudiated the Court's decision but attached a legislative interpretive menu to limit the Court's ability to attempt a similar subversion of legislative intent. While Congressional protection of minority rights may be erratic, the reality is that except for a few positive deviations, democratic legislation has been a far better protector of those rights than a judiciary reflecting the overwhelmingly white and elitist makeup of the bench.

This fact is only reinforced by the recent "states rights" cases by the Rehnquist Court that have gutted civil rights protections against state government discrimination. In succession, the Court has overruled Congressionally passed civil rights protections in the Age Discrimination in Employment Act[67], the Violence Against Women Act[68] and the Americans with Disabilities Act.[69]

In the area of commercial speech, it was originally the liberals on the Court who abandoned any connection between speech and political or artistic expression to give corporations free speech protection against most regulation of their advertising.[70] Having had the liberals on the Court establish precedent after precedent that judicial activism could trump the economic judgement of legislators in areas like commercial speech, it is hardly surprising that the Rehnquist Court has enthusiastically furthered this return to the Lochner era with a series of cases overturning state and federal economic regulations in the name of "takings", "Due Process" and the "commercial speech" doctrine. In a sequence of decisions, the Rehnquist Court has struck down local environmental and zoning laws as illegal takings.[71] Most dramatically in one of the less publicly commented upon cases, the Supreme Court in Eastern Enterprises v. Apfel[72] struck down a Congressional law mandating that mining companies share the costs of health care for mining retirees where the original companies had often been bought out or gone under. O'Connor, writing for the Court, for the first time declared a Congressional regulation an illegal takings by arguing that the law "interferes with the claimant's reasonable investment-backed expectations."[73]

With such a broad standard as frustrating expectations of profit, the Court is moving towards a level of judicial activism that may increasingly strike down a wide swath of regulation currently restraining corporate power or acting to redistribute resources to those less well-off - a path started with the judicial activism begun under earlier "liberal" Court Justices.

Critiquing the limits of Judicial Review

If progressives argue for rejecting broad judicial activism in favor of protecting democratic rights, that does not mean that we have to cede no role for the court in protecting the individual rights that makes such democratic debate possible. Where elected representatives benefit from systems that protect them from democratic accountability or deny people the right to vote, judicial intervention may be the only systematic way to restore the functioning of democracy. As well, the Bill of Rights is largely intended as exactly that enumeration of restraints on majority power.

Yet if anyone worries that an impeachment campaign against the Courts would cause collateral damage to the defense of individual rights, they should consider the reality of the historic assault by the Court on unions and the current judicial rollback of affirmative action. What these show is that an independent judiciary is as often a weapon for destroying individual and minority rights as their salvation.

Ultimately, the Supreme Court is a political institution like any other and as radicals, we need to apply the same far-reaching critiques and mobilizations against it as we do any other institution of power in society. If we do not - especially when the Right has little compunction in doing so - we will guarantee a steady erosion of democratic rights to the increasingly rightwing court system.

The Historic Justification for Political Impeachment

Even if an impeachment campaign is justified politically, many progressives will argue that it will be marginalized as unconstitutionally using the impeachment process for "mere" political differences. American history, especially progressive history, says otherwise.

In fact, over the course of American history, the House of Representatives has impeached fifteen individuals, including two Presidents, twelve judges, a senator, and a cabinet member. The Senate has convicted seven of the fifteen.[74] Most were impeached for acts of personal impropriety but a number of others have been impeached strictly for their official conduct. The early history of the Republic saw a number of politically-charged judicial impeachments.

In 1803, the House passed four articles of impeachment against Federal District Judge John Pickering. The articles focused on judicial rulings he made against the federal government, condemning his approach to prosecution of the law in those cases including a refusal to hear testimony and grant a particular appeal. The Senate convicted Pickering on all four articles.[75]

Supreme Court Justice Samuel Chase was impeachment soon after in 1804. The charges were based on controversial judicial rulings from his time as a district judge and were made against a backfrop of partisan struggle over control of the courts. The charges included condemnations of Chase refusing to hear an attorneys' arguments, allowing an individual to serve as a juror even after the individual had admitted bias, preventing a witness from testifying, refusing to grant a postponement, "unusual, rude and contemptuous expressions" toward defendant's counsel, issuing a bench warrant in lieu of a summons, refusing a continuance. With hard political divisions between the Federalists and Jeffersonians seeking impeachment, the Senate in the end failed to convict Chase on any of the charges.[76]

In 1826, the House brought a single article of impeachment against District Judge James Peck for exceeding his contempt powers by imprisoning and causing the suspension of an attorney who had published an article critical of him. The Senate failed to convict by a vote of twenty-one to twenty-two.[77]

On top of those who were officially impeached, many judges have resigned because the fifty House impeachment investigations of judges. While Congress has removed only seven Article III judges in the last 200 years, at least twenty-two other federal judges resigned or retired from the bench under a cloud of investigation.

Originalist theories on impeachment for cause

It is relatively clear that the framers of the Constitution saw impeachment as an important political check on the judicial branch. Notably, judges were to serve during "good behavior" subject to impeachment. During the Constitutional Convention, George Mason ignited the debate about what should constitute an impeachable offenses under the Constitution. At first, the only proposed impeachable offenses were treason and bribery, but Mason believed that "attempts to subvert the Constitution may not be Treason" but should be recognized as an impeachable offense. Mason proposed that "maladministration" be added to the list of offenses but, after some debate, Mason replaced it with the phrase "other high Crimes and misdemeanors." The delegates then passed that recommendation eight to three without further debate.[78]

Without rehashing the whole historic debate from the Clinton impeachment, the term "high crimes and misdemeanors" had a long 400-year history dating from the 1386 impeachment of the Earl of Suffolk which had applied the term to many non-criminal political crimes. While the Convention did not end up using the term "maladministration," William Blackstone had considered maladministration to be a high crime or misdemeanor in his writings. For example, Blackstone wrote that public officials were subject to impeachment because they "may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either does not or cannot punish."[79] Richard Wooddeson, Blackstone's successor as Vinerian Lecturer, explicitly argued that impeachment is appropriate for misdeeds that would not be cognizable in the ordinary courts such as if they "mislead their sovereign by unconstitutional opinions."[80]

In his Commentaries on the Constitution of the United States, US Supreme Court Justice Joseph Story summarized Wooddeson's work:

In examining the parliamentary history of impeachments it will be found that many offenses not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinary remedy. Thus, lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions and for attempts to subvert the fundamental laws, and introduce arbitrary power.[81]

Similarly, in The Federalist Papers, Alexander Hamilton made it clear that impeachment was a political matter as much as criminal: "The subjects of its [impeachment's] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words from the abuse or violation of some public trust. They are of a nature which with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself."[82]

Hamilton argued that the independence of the judiciary would be tightly reined in by Congress through the threat of impeachment. "[T]he supposed danger of judiciary encroachments on the legislative authority . . . is in reality a phantom," he argued. While "[p]articular misconstructions and contraventions of the will of the legislature may now and then happen," Hamilton noted that "they can never be so extensive as to amount to an inconvenience," given the "comparative weakness" of the judicial branch and the availability of impeachment: "There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations."[83]

Justice James Wilson, a signer of the Constitution and one of the five original Supreme Court Justices explained that "Impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments."[84] Notably, the impeachment of Samuel Chase, the only impeachment of a Supreme Court Justice, involved the issue of rendering an opinion that in the view of Congress was unconstitutional. After Justice Chase's impeachment, but prior to his acquittal, Chief Justice John Marshall made clear in a letter to Chase that "[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment." He noted that he thought a better alternative would be that "the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault."[85]

In his Commentaries, Justice Joseph Story noted that impeachment was not meant as a condemnation of character but as a political tool for restraining arbitrary power:

The jurisdiction is to be exercised over offences, which are committed by public men in violation of their public trust and duties. Those duties are, in many cases, political; and, indeed, in other cases, to which the power of impeachment will probably be applied, they will respect functionaries of a high character, where the remedy would otherwise be wholly inadequate, and the grievance be incapable of redress. Strictly speaking, then, the power partakes of a political character, as it respects injuries to the society in its political character...[86]

Yet, he went on to make an even stronger statement, noting that no one in his day had asserted that impeachment could be confined to federal crimes: "there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book...[N]o one has as yet been bold enough to assert that the power of impeachment is limited to offences positively defined in the statute book of the Union, as impeachable high crimes and misdemeanors."[87] Similarly, Chancellor James Kent, known as "the American Blackstone" for his early defining writing on American law supported the impeachment of judges where they "substitute arbitrary will" for rational judgment.[88]

More recent views supporting political impeachment

Some might argue that such originalist arguments are all very well, but like many other early doctrines dispensed with in the course of history, such a view of impeachment was rapidly disgarded in favor of a stronger view of judicial independence. In that context, it is worth noting the remarks made before the American Bar Association by William Taft, the only man to serve the United States as both President and Chief Justice of the Supreme Court:

Under the authoritative construction by the highest court of impeachment, the Senate of the United States, a high misdemeanor for which a judge may be removed is misconduct involving bad faith or wantoness [sic] or recklessness in his judicial actions, or in the use of his official influence for ulterior purposes. By the liberal interpretation of the term "high misdemeanor" which the Senate has given there is now no difficulty in securing the removal of a judge for any reason that shows him unfit.[89]

New Deal Justice Felix Frankfurter as late as 1952 argued in Rochin v. California that if Supreme Court Justices would not restrain themselves, they were subject to impeachment: "Restraints on our jurisdiction are self-imposed only in the sense that there is from our decisions no immediate appeal short of impeachment or constitutional amendment."[90]

Recent conservative support for judicial impeachment

In the decades following the beginning of the Warren Court, the arguments for judicial impeachment would increasingly come from the conservative side of the spectrum.

Gerald Ford argued on floor of the House during his drive to impeach Supreme Court Justice William Douglas:

What, then, is an impeachable offense? The only honest answer 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.[91]

Most recently in 1997, Tom DeLay, the Majority Whip of the House of Representatives, announced that he favored impeachment of "activist" federal judges. He noted: "The articles of impeachment are being written right now.... As part of our conservative efforts against judicial activism, we are going after judges.... Congress has given up its responsibility in [overseeing] judges and their performances on the bench, and we intend to revive that and go after them in a big way."[92]

He did not announce specific judges but said names would be forthcoming. Delay explained: "I advocate impeaching judges who consistently ignore their constitutional role, violate their oath of office and breach the separation of powers. The Framers provided the tool of impeachment to keep the power of the judiciary in check. It is a tool Congress should explore using."[93] DeLay and his allies soon suggested a number of possible candidates for judicial impeachments, including William Justice, Fred Biery, Harold Baer, Thelton Henderson, and John T. Nixon-- judges who had made controversial decisions that had enraged conservatives. Notably, conservatives had little compunction about using the impeachment tool as a method to pressure judges and raise the legal issues they felt had been violated.

This movement by Delay was backed by conservative grassroots movements such as the Free Congress Foundation and other religious Right groups that had mounted attacks on the Supreme Court over the pro-gay rights Romer[94] decision. Arguably as a consequence of this Delay-led movement for impeachment, liberal federal judge H. Lee Sarokin resigned from the Third Circuit Court of Appeals, and the heavily criticized Judge Baer reversed his controversial decision. Then in May and July 1997, respectively, subcommittees of both the House and the Senate held hearings on judicial activism which included discussions of impeachment. In May 1997, the impeachment efforts against Judge Nixon in Tennessee resulted in both houses of the Tennessee legislature overwhelmingly passing a resolution calling upon the United States House of Representatives to investigate Judge Nixon for impeachment. Governor Sundquist signed the resolution and it was sent to the United States House of Representatives.[95]

While there is a temptation for progressives to fall in with the legal establishment which bemoans the "politicization" of judicial impeachment, but it shows a notable failure of political will on the Left to retreat to procedural defenses of the courts rather than be willing to contest for political power at the grassroots, including over control of the federal courts. Where the Right may seek to challenge liberal justices on issues like the death penalty, progressives should not shrink from challenging rightwing judges, including Supreme Court Justices, with the threat of impeachment on issues where they defy the popular will on issues such as civil rights, womens rights, labor rights, and environmental protection.

Historical context for the present Supreme Court impeachment campaign

It is worth placing the current debate over the judiciary in the context of two other great periods of Constitutional upheaval and judicial overreach against the popular will: Reconstruction and the New Deal period. In those periods, the progressive threat of impeachment against the Supreme Court was a critical tool in defending new progressive legislation threatened by judicial tyranny. As the Rehnquist Court seeks to enact a new period of rightwing judicial rollback of progressive legislation, we should recognize that any movement for judicial impeachment is part of an honorable progressive democratic tradition.

After the Civil War, as radical Republicans sought to enact new Reconstruction laws, many lawmakers rightly feared the threat of judicial attack on ending the legacy of slavery. Along with the impeachment of Andrew Johnson, there was a very real threat of impeachment against the Supreme Court. At the center of the controversy was Justice Stephen Field, who was threatened publicly with impeachment after reports in the press reported his alleged disparagement of the Reconstruction laws. On January 30, 1868, Republican Representative Glenni W. Scofield of Pennsylvania, introduced a resolution in the House directing the Judiciary Committee to decide whether the reported facts justified an impeachment. The resolution passed by a vote of ninety-seven to fifty-four.[96]

While the alleged comments were not proved and the resolution was tabled, Justice Field noted privately his sense of intimidation in the context of general Congressional criticism of the Court and the impeachment campaign against Andrew Johnson. In January the House Judiciary Committee had also reported a bill intended to restrict the Court's ability to find the Reconstruction Acts unconstitutional. Conservative Republican Gideon Welles referred to the situation as Congress's "war upon the Court." In March the war escalated with the passage of an amendment to an appropriations bill which repealed the appellate jurisdiction of the Supreme Court under the Habeas Corpus Act of 1867 and prohibited the Court from exercising jurisdiction on any appeals already taken.[97]

Newspaper commentary of the time expressed the extreme congressional distrust of the Supreme Court. For instance, The Independent informed its readers that "[t]his Congress will not brook opposition from the Court in political matters. The safety of the Nation demands the Congressional Reconstruction shall be successful; and if the Court interferes, the Court will go to the wall." Representative Robert Schenck of Ohio, who had been responsible for the Amendment repealing the Court's Habeas Corpus Act jurisdiction, declared "I hold it to be not only my right, but my duty as a Representative of the people, to clip the wings of that Court." [98]

Many decades later, in the runup to the 1937 progressive confrontations with the Supreme Court over the New Deal, Judge Halsted Ritter was removed from office in 1936 under circumstances which suggested to some that "the Senate's decision had been designed to intimidate the Supreme Court." Since the impeachment trial brought up old charges, some legal scholars speculate that "[b]ecause the House of Representatives had already investigated him in 1933, perhaps Judge Ritter's impeachment emerged as a ready-made and quick route for showing the judicial branch that Congress possessed, and would use, power to chasten it."[99]

What ultimately led to the 1937 Supreme Court backing down from its reactionary activism in ratifying the New Deal has been endlessly debated. No doubt a combination of factors, from the radical upsurge in union strike activity to Roosevelt's electoral landslide, all played their role. But we should not forget the honorable role the National Lawyers Guild played in 1937 in defying the conservative legal establishment and leading progressive lawyers to publicly support restrictions on judicial power.

Conclusion: Making the Case for Impeachment of the Rehnquist Five

That is the tradition in which the National Lawyers Guild should launch a new impeachment drive against the Rehnquist Court. We are now facing a similar period of reactionary judicial overreach that we in the Guild have a responsibility to challenge in the most comprehensive way possible.

Numerous legal scholars, notably Vincent T. Bugliosi in his February 5 Nation article and his just published book The Betrayal of America, have outlined the legal travesty of Bush v. Gore in violating the most basic democratic doctrines of the separation of powers and core values of equal rights.

But the problem is not merely one politically opportunistic decision but the fact that Bush v. Gore reflects a Court rightwing majority that hypocritically chooses federal dominance when it serves their ideology, then hypocritically invokes "states rights" to disable civil rights or other progressive legislation. That rightwing majority votes to strike down local zoning laws and progressive state legislation like the Burma law and medical marijuana in the name of federal supremacy, then strike down federal laws like the ADA and Violence Against Women Act in the name of state power. The liberal wing at least has a consistent legal philosophy in upholding federal law consistently, even when it often effects local legislation they might have ideologically favored. What is legally most lawless about the rightwing majority is that if you know the politics of a case, you usually know the outcome without knowing the legal question involved.

Ultimately, we need to make the case for impeachment based on this lawless opportunism and the threat the rightwing majority poses to our democracy's commitment of civil rights and economic equity. Ultimately, we should boil this threat of the Rehnquist Five down to three principle areas: 1)

The threat to democratic rights and the separation of powers as symbolized by Bush v. Gore and its assault on the most fundamental right to have our votes counted in elections. 2)

The threat to civil rights legislation as represented by the decisions rolling back affirmative action, striking down the Violence Against Women Act and the application of the ADA to the states. 3)

The threat to corporate and environmental regulation as represented by their anti-union rulings, the striking down of zoning laws, and other "takings" rulings such as Eastern Enterprises v. Apfel that threaten a wide range of democratic regulation of the economy.

A campaign of impeachment will raise the broadest critiques of the Court in a way that law review articles just can never do. If the Guild is going to be a contributor to real radicalism in our society, it needs to have long-term goals and campaigns to complement the tremendous day-to-day work it and our members are doing all the time. It needs campaigns that unite and energize those members and our allies in an alternative vision, an alternative critique of our society. To stop at merely saying that no more Rehnquists should be added to the current majority seems an amazing failure of radical will.

If we as radicals cannot stand up and say that those five lawbreaking criminals have no right to judge other people's lives and should therefore be removed, who will?

============

1 531 U.S. 98.

2 New York Times Magazine. June 3, 2001.

3 Ginger, Ann Fagan and Eugene Tobin, ed. The National Lawyers Guild: From Roosevelt through Reagan (Temple University Press 1988), p. 10.

4 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

5 381 U.S. 479 (1965).

6 410 US 113 (1973).

7 381 U.S. 479, 507.

8 Id. at 510.

9 198 U.S. 45 (1905).

10 381 U.S. 479, 523.

11 Roger Newman. Hugo Black: A Biography. Pantheon Books. New York. 1994, p. 69.

12 Id. at 57.

13 23 U.S. (10 Wheat) 66 (1825).

14 10 U.S. (6 Cranch) 87 (1810).

15 Cherokee Nation v. Georgia, 30 U.S. (5 Pet. 1) (1831).

16 Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543.

17 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

18 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 536 (1842).

19 See Strauder v. West Virginia, 100 U.S. 303 (1880) protecting the right of blacks to serve on juries.

20 163 U.S. 537 (1896).

21 The Civil Rights Cases, 109 U.S. 3 (1883).

22 See Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886).

23 See exceptions such as Muller v. Oregon, 208 U.S. 412 (1908) and Bunting v. Oregon, 243 U.S. 426 (1917).

24 See the one outstanding exception in Bailey v. Alabama, 219 U.S. 219 (1911) where the Court outlawed Alabama's debt peonage system that enforced wage contracts by threats of imprisonment.

25 Lochner, 198 U.S. 45 (1905).

26 Adair v. United States, 208 U.S. 161 (1908) and Coppage v. Kansas, 236 U.S. 1 (1915).

27 In re Debs, 158 U.S. 564 (1895).

28 Loewe v. Lawlor, 208 U.S. 274 (1908), better known as the Danbury Hatters case.

29 Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921).

30 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (1917).

31 See remarks by Rep. Oliver (75 Cong.Rec. 5481 (1932)).

32 See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Carter v. Carter Coal Co., 298 U.S. 238 (1936); United States v. Butler, 297 U.S. 1 (1936).

33 300 U.S. 379 (1937).

34 See e.g. Wickard v. Filburn, 317 U.S. 111 (1942);Williamson v. Lee Optical Co., 348 U.S. 483 (1955); and in Ferguson v. Skrupa, 372 U.S. 726 (1963), Justice Black would summarize this approach as refusing "to sit as a 'super-legislature to weigh the wisdom of legislation.'"

35 Cantwell v. Connecticut, 310 U.S. 296 (1940); Everson v. Board of Education, 330 U.S. 1 (1947).

36 Korematsu v. United States, 323 U.S. 214 (1944).

37 ACA v. Douds, 339 U.S. 382 (1950).

38 Dennis v. United States, 341 U.S. 494 (1951); Sacher v. United States, 343 U.S. 1 (1951).

39 349 U.S. 294 (1955).

40 Mary Dudziak, Desegregation as a Cold War Imperative, 41 Stan. L. Rev. 518 (1980); cited in The Processes of Constitutional Decisionmaking, p. 739.

41 418 U.S. 717 (1974).

42 For a classic case study, see J. Anthony Lukas, Common Ground: A Turbulent Decade in The Lives of Three American Families. New York: Knopf, 1985.

43 San Antonio Independent District v. Rodriquez, 411 U.S. 1 (1973).

44 384 U.S. 641 (1966).

45 Board of Trustees of the University of Alabama v. Patricia Garrett, 2001 WL 173556 (U.S.Ala.).

46 United States v. Morrison, 529 U.S. 598 (2000).

47 See Morrison at 1756.

48 Boys Market v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970).

49 See Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962).

50 Id. at 258-259.

51 Id. at 250.

52 404 U.S. 71 (1971).

53 411 U.S. 677 (1973).

54 Id.

55 Geduldig v. Aiello, 417 U.S. 484 (1974).

56 General Electric Company v. Gilbert, 429 U.S. 125 (1976).

57 42 U.S.C. 2000e(k).

58 e.g. City of Los Angeles v. Manhart, 435 U.S. 702 (1978).

59 Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).

60 Ruth Bader Ginsburg, Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 376, 381-92 (1985).

61 Kristin Luker, Abortion and the politics of motherhood (Berkeley: University of California Press, 1984).

62 Theda Skocpol. Protecting soldiers and mothers : the political origins of social policy in the United States (Cambridge, Mass.: Belknap Press of Harvard University Press, 1992).

63 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

64 Adarand Constructions, Inc. v. Pena, 115 S.Ct. 2097 (1995).

65 490 U.S. 642 (1989).

66 Alexander v. Sandoval, 2001 WL 408983 (2001).

67 Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).

68 United States v. Morrison, 120 S.Ct. 1740 (2000).

69 Board of Trustees of the University of Alabama v. Patricia Garrett, 2001 WL 173556 (U.S.Ala.).

70 See Virginia State Board of Pharmacy, 425 U.S. 748, 765 (1976).

71 See Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Dolan v. City of Tigard, 512 U.S. 374 (1994), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

72 524 U.S. 498 (1998)

73 Id. at 501.

74 Jason J. Vicente, Impeachment: A Constitutional Primer, 3 TXRLP 117, 133 (1998).

75 Id., 135.

76 Id., 136.

77 Id., 136

78 Charles Gardner Geyh & Emily Field Van Tassel, The Independence Of The Judicial Branch In The New Republic, 74 CHIKLR 31, 41-42 (1998).

79 4 William Blackstone, Commentaries On The Law Of England 258.

80 2 Richard Wooddeson, Laws Of England 602-03 (Dublin: E. Lynch 1792).

81 Joseph Story, Commentaries on the Constitution of the United States, 2 vols. (5th ed., 1905) 800.

82 The Federalist No. 65, at 331 (Alexander Hamilton) (Bantam Books 1982).

83 The Federalist No. 81, at 411 (Alexander Hamilton) (Bantam Books 1982).

84 2 James Wilson, The Works Of The Honorable James Wilson 166 (Bird Wilson ed. 1804).

85 Cited in Steven W. Fitschen, Impeaching Federal Judges: A Covenantal And Constitutional Response To Judicial Tyranny, 10 REGULR 111, 139-140 (1998).

86 Story 762.

87 Id. 795.

88 Cited in Steven Wilf, The First Republican Revival: Virtue, Judging, And Rhetoric In The Early Republic, 32 CTLR 1675, 1688 (2000).

89 Fitschen, 143-44.

90 Rochin v. California, 342 U.S. 165, 172 (1952).

91 116 Cong. Rec. 11, 913 (1970).

92 Ralph Z. Hallow, Republicans Out to Impeach Activist Jurists, Wash. Times, Mar. 12, 1997, at A1.

93 Tom DeLay, Letter to the Editor, Impeachment Is a Valid Answer to a Judiciary Run Amok, N.Y. TIMES, Apr. 6, 1997, at 18.

94 Romer v. Evans, 517 U.S. 620 (1996),

95 Fitschen, 113-116

96 Emily Field Van Tassel, RESIGNATIONS AND REMOVALS: A HISTORY OF FEDERAL JUDICIAL SERVICE--AND DISSERVICE--1789-1992, 142 UPALR 333, 375-376 (1993).

97 Id. at 376.

98 Id.

99 Id. at 378-79.