Bench Memos

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The Perennial Publius, part 81


The other day I posted some comments on this page about Sandra Day O’Connor’s Sunday interview with Fox’s Chris Wallace, in which the retired Supreme Court justice fretted about the “assaults” against the judiciary being made nowadays.  It doesn’t occur to Justice O’Connor that proposals to do something about an out-of-control judiciary constitute belated thinking about the self-defense of republicanism, and that the charge of assaulting the Constitution may be laid against judges like herself.  But rather than go over that whole ground, I’d like to consider Justice O’Connor’s thoughts about one small thing she brought up–that federal judges may be impeached for the way they ply their craft.  “That was not the constitutional scheme,” she says.  And she returns to it, clearly quite concerned: “to take a particular judge and try to impeach them [sic] for some decision, or take other sanctions of that nature, goes clearly against the constitutional structure.  We don’t do that.”

Justice O’Connor, meet Publius.  In Federalist No. 81, Alexander Hamilton directly addresses the prospect of judges who abuse their authority to uphold the Constitution.  He places in quotation marks an imagined argument of an Anti-Federalist on this subject (but not an imaginary argument: it is a condensed paraphrase of the New Yorker “Brutus”), complaining that “the errors and usurpations of the supreme court of the United States will be uncontrolable and remediless.”  Hamilton rejects the idea of giving Congress any power to reverse erroneous rulings in individual cases, but this is not a surrender to judicial supremacy: “A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases.”  This was exactly Lincoln’s argument about the Dred Scott case, and Hamilton probably meant what Lincoln did by it–that the other branches of government are not in all instances obliged to conform their actions to the pronouncements of the Supreme Court on the meaning of the Constitution in a particular case.

But Hamilton’s clincher, the reason he can so confidently proclaim the “supposed danger of judiciary encroachments on the legislative authority” to be “in reality a phantom,” is the impeachment power possessed by the Congress:

This is alone a complete security.  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.

In 1805, the only impeachment in our history of a Supreme Court justice (Samuel Chase) ended in an acquittal.  Thomas Jefferson, who thirsted for Chase’s conviction and removal, declared that henceforth impeachment would be a mere “scarecrow.”  And Justice O’Connor would be right that for the last two centuries this has been something “we don’t do.”  But perhaps the case against Chase was simply not very strong.  As late as 1833, in his Commentaries on the Constitution, Justice Joseph Story was still quoting the lines above from Federalist No. 81 with approval, and adding in his own words:

It is almost unnecessary to add, that, although the constitution has, with so sedulous a care, endeavoured to guard the judicial department from the overwhelming influence or power of the other coordinate departments of the government, it has not conferred upon them any inviolability, or irresponsibility for an abuse of their authority. On the contrary for any corrupt violation or omission of the high trusts confided to the judges, they are liable to be impeached, (as we have already seen,) and upon conviction, removed from office. Thus, on the one hand, a pure and independent administration of public justice is amply provided for; and, on the other hand, an urgent responsibility secured for fidelity to the people.

What Story thought it was “almost unnecessary to add” requires, today, a great exertion of both memory and will.  Are we up to it?

(For explanation of this recurring feature, see here.)


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