Reining in a Runaway Federal Judiciary?

In February 1805 the Jeffersonian Republicans held overwhelming majorities in Congress, President Thomas Jefferson had just won a landslide reelection, and contempt for the opposition Federalists ran deep. A group of Republicans had aimed their fire at federal judges appointed by their partisan rivals, first securing the impeachment and removal of John Pickering, a Federalist who also suffered a serious mental illness. Now, the Senate faced a more difficult case in the trial of Supreme Court Justice Samuel Chase, impeached by the House for judicial misconduct while sitting on the bench. Though Republicans held 25 of 34 Senate seats, no more than 19 senators voted to convict Chase, a vocal Federalist, on any of the eight charges, short of the required two-thirds.

As an astute commentator on these early impeachment proceedings observes: “Chase was by no means a model judge, and his acquittal certainly was not an endorsement of his actions. Rather, the Senate’s failure to convict him represented a judgment that impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties. The political precedent set by Chase’s acquittal has governed the use of impeachment to remove federal judges from that day to this: a judge’s judicial acts may not serve as a basis for impeachment. Any other rule would destroy judicial independence. . .”

The astute commentator? None other than Chief Justice William Rehnquist – not likely the member of the Court whom Republican House Majority Leader Tom DeLay had in mind in his recent attack on the federal judiciary. DeLay’s expression of disgust with the refusal of federal judges to intervene in the case of Terri Schiavo was merely the latest in a series of assaults by some members of Congress on judges and justices who made decisions with which they vehemently disagreed. DeLay suggested that the responsible judges would be called “to answer for their behavior” and added in reference to impeachment charges, “There’s plenty of time to look into that.” In fact, as early as 1997, DeLay advocated impeaching federal judges who had issued rulings that were “particularly egregious.”

DeLay’s stance ignores the unbroken, two-century-long streak during which no federal judges have been impeached and convicted for their actions on the bench. Following the Chase trial, only one impeachment case based solely on a judge’s decisions came to trial. The Senate acquitted District Judge James Peck in 1831, putting a stop to such trials that has persisted to this day. In the 1950s and 1960s, popular furor over the decisions of the liberal Warren court resulted in a stream of letters to Congress urging the Chief Justice’s impeachment, with bumper stickers and billboards nationwide pressing the same. Yet despite the uproar, not even an impeachment investigation was held during this high-profile controversy. The norm against impeaching judges for their official acts was—and remains—deeply ingrained.

Throughout American history, legislators and presidents have attempted to bring independent-minded jurists into submission through other means as well, such as packing and unpacking the courts, restricting their jurisdiction, cutting judicial budgets, defying court orders, and investigating individual judges. Yet, as with impeachment, these tactics have met with minimal success and now are widely viewed as illegitimate and threatening to judicial independence. Law professor Charles Geyh argues persuasively that there has been a gradual decline since the nation’s founding in the acceptability of all political means of exerting influence on the judiciary, apart from the judicial appointment process. While from time to time sharp disagreement with their decisions has led to actual or threatened attacks on the courts, these episodes only have reinforced the long-term trend toward judicial independence.

When attempting to pack the Supreme Court in 1937, Franklin D. Roosevelt discovered, to his surprise, deep public commitment to an independent judiciary. Roosevelt proposed a plan that would have allowed him to appoint six justices to the bench, with the intended effect of securing Supreme Court approval for New Deal policies. Despite his deep popularity, the president failed to gain congressional approval and was confronted with a public backlash, premised on support for the Court’s institutional independence, if not its politics at the time. Not surprisingly, Roosevelt was the last public official to attempt this particular course of political interference.

A similar overreaching is apparent in more recent efforts in Congress to rein in an alleged runaway federal judiciary. The heated rhetoric of DeLay and some of his congressional colleagues in denouncing the federal judiciary is properly eliciting the same negative public response. It seems ordinary citizens have a better sense of appropriate constitutional arrangements — including the separation of powers and the balance between majority rule and minority rights — than some of their elected representatives.

Legitimate means are available to the Congress and the president to try to shape the courts as they see fit. Judicial appointments, clear and compelling statements of constitutional reasoning and statutory intent, and public education all fit comfortably within their purview. Impeachment for decisions that judges make on the bench and other brass-knuckle tactics to punish the judicial branch are a disservice to our constitutional democracy and deserve to be consigned to the dustbin of history.