Is the threat of impeachment sufficient to deter Supreme Court Justices from abusing power or engaging in other acts of misbehavior that would warrant their removal from the nation’s High Bench? The Framers of the Constitution thought so, as Alexander Hamilton explained, but many Americans across our nation doubt the premise. Consequently, they have become advocates for Supreme Court reform. Some lobby for an enforceable ethics code, some seek term limits for the Justices, and some argue for an expansion of the size of the Court, primarily to temper its present direction. Others assert the need for all three reforms.
What was it about impeachment that instilled in the minds of delegates to the Constitutional Convention that suggested its availability would constrain the Justices’ behavior? In general, Hamilton explained, the eyes and judgment of the nation would be fixed on those subject to impeachment. Ambition, success and fame- –“one’s public reputation and existence”—were vitally important to the founders, and the moral opprobrium, embarrassment and indignity of impeachment proceedings, including possible removal from office, would impose discipline on the Justices if their own compass failed them. Impeachment of judges, those in society, as George Washington observed, perceived by the American citizenry to be among the sturdiest and upright among us, carried a particularly harsh stigma, sufficient to ruin careers.
Article II of the Constitution provides for the impeachment of the President, Vice-President and all “civil officers,” which was added by drafters of the Constitution to include judges, for treason, bribery and high crimes and misdemeanors. Article III provides an additional standard for judges—tenure on the bench during “good behavior.” That standard, which in English legal history dates to the early 14th Century and the reign of King Edward III, has been understood across the centuries to require behavior in accord with the terms and expectations of the office. “Good behavior” was an important criterion for judicial tenure. Obviously, the Framers did not intend that a judge who behaved badly and thus violated the condition of his tenure should remain on the bench. Maintaining a “misbehaving” judge in power would be self-defeating. Chief Justice Thomas McKean told his colleagues at the Pennsylvania Ratifying Convention that “judges may continue for life, if they shall so long behave themselves well.” Hamilton, in Federalist No. 65 agreed, and said that “good behavior” was copied from the English model.
Because there are no dead words in the Constitution, as the Court has said since Marbury v. Madison (1803), and because, as James Madison explained in Federalist No. 44, that “there is no axiom more clearly established than that wherever the end is required, the means are authorized,” it is incumbent on Congress to impeach and remove judges engaged in serious misbehavior. Good behavior is a broader standard than high crimes and misdemeanors, and we are entitled to wonder what conduct would violate that principle. The exercise of judicial review itself, as James Wilson and other founders stated, does not breach the standard, for the declaration that a statute is unconstitutional is part and parcel of the judicial power wielded by the federal judiciary.
Misbehavior that would meet the standard can be glimpsed in two illuminating 20th Century impeachment trials, among the roughly 20 occasions in our history when federal judges have been impeached and removed from the bench. Readers will find this instructive.
In 1936, District Judge Halsted Ritter was convicted by the Senate in his impeachment trial for bringing his court “into scandal and disrepute,” in part because he accepted substantial gifts from wealthy residents of his district, even though they had no cases pending before him. The Senate stated that his acts undermined “public confidence in the administration of justice” in his own court, “and to the prejudice of public respect and confidence in the Federal Judiciary.” In 1912, Judge Robert W. Archbald was impeached and convicted by the Senate on the charge of speculating in coal properties while serving on the U.S. Commerce Court
The impeachment and removal of these judges for infractions of “good behavior,” for misconduct outside the courtroom, the Senate concluded, brought disgrace upon judiciary and undercut public confidence in the fair-mindedness and objectivity of the courts. The offenses were easily avoidable. Judge Ritter, for example, could have rejected gifts from wealthy citizens in the name of protecting the reputation of the judiciary.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
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