Opinion Forum

An Angry President May Have Ways to Tame a Disobedient Supreme Court

April 4th, 2012

None are no good ways and with only one exception none appear to have been attempted. Still, we do live in very interesting times.

On April 2nd, President Obama presented a political diatribe claiming that for the Supreme Court to strike down ObamaCare as unconstitutional would be “unprecedented.” Although it is true that the Supreme Court has never struck down anything called “ObamaCare,” he was in other respects wrong because the Supreme Court has held acts of Congress unconstitutional — not very often but nevertheless occasionally. The first assertion by the Supreme Court of its authority to review acts of the Congress for constitutionality was in 1803, in Marbury v. Madison. Perhaps because someone called this to his attention, ~~constitutional scholar~~ President Obama later backtracked a bit on his assertion. Still, according to this splendid article at the ever enjoyable Daily Beast, we should “Impeach the Supreme Court Justices If They Overturn Health-Care Law”.

The President’s statement quickly produced speculation that he was threatening the Court, either with making it a political target during this year’s election campaign or otherwise, should the Court hold all or part of ObamaCare unconstitutional.

Such a threat would not be “unprecedented.” President Franklin Roosevelt threatened to “pack” the Supreme Court in 1937 because it had held some of his New Deal legislation unconstitutional. That threat was not well received by the public and it became in any event unnecessary to carry it out it due to retirements by some of the justices, permitting FDR to nominate “suitable” replacements. The Supreme Court thereafter held little New Deal legislation unconstitutional and many of the precedents established by the newly “enlightened” Supreme Court have have been fruitful, producing many no less fruitful progeny. Court packing may be one of President Obama’s available options.

Constitutional qualifications for appointment as Supreme Court justices

Unlike the provisions of the Constitution stating minimal qualifications for the President, Vice President and members of the Congress, the Constitution does not state any qualifications needed to become a Supreme Court justice. Nor does it state how many there can, or must, be. Article III (Authority of the Judicial Branch), Section 1 provides only that:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

No qualifications based on age, experience, education, citizenship or anything else for Supreme Court justices are stated, so the President could constitutionally nominate any, and however many, justices he might wish; or he could decline to nominate replacements for justices who die or retire. Under a “strict” reading of Article III, the president could nominate and the Senate could confirm anyone, for example, el Presidente Hugo Chávez of Venezuela, Ayatollah Ruhollah Khomeini of Iran (although both might have difficulty obtaining visas to enter the United States), an illiterate ninety-five year old peasant from Afghanistan or a new young son named Trayvon. For that matter, he could nominate the entire population of Washington, D.C. Nominations of this sort would, of course, be “unprecedented;” actually unprecedented and not in the dubious sense that President Obama used the word. One hopes that such nominations might have substantial difficulty in being approved by the Senate, even by one under the control of President Obama’s party.

Removal of Supreme Court justices from office by impeachment or otherwise

Article III, Section 1, says nothing about the impeachment of justices and states only that they “shall hold their Offices during good Behaviour.” An ambiguous term and therefore subject to almost infinite interpretation, this might well cause problems in the event of an attempt to impeach or otherwise to remove a Supreme Court justice. Does a justice cease to engage in “good Behaviour” when he disregards the will of the elected members of Congress and/or of President? The First Dog might get away with disregarding the will of the President, but surely there are limits to that sort of thing. Unlike a misbehaving First Dog, it would be unseemly to swat a misbehaving Supreme Court justice with a rolled up newspaper, even The New York Times. A different disciplinary method would be needed.

There may be other problems. Article I, Section 1 states that the House of Representatives “shall have the sole Power of Impeachment.” Article I, Section 3 states,

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Article II, Section 4 provides,

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Note that Article II, Section 4 does not say “only for” the stated offenses and possibly therefore does not limit impeachment either of the stated officials — or of anyone else arguably subject to impeachment — to the stated offenses. Conceivably, no matter how unlikely, a president could therefore be removed from office upon impeachment for and conviction of discourtesy toward a member of the Congress or for being late for meetings.

Article III, Authority of the Judicial branch, Section 3 — which seems rather a strange Article to have put it in — provides this definition of treason (but not of “other high Crimes and Misdemeanors”):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (Emphasis added.)

Is the Senate an “open Court?” Probably, for purposes of impeachment, but I do not know and see no reason to try to find an answer. Even without delving into that, it’s rather complicated.

A question could be raised as to whether a Supreme Court justice is a “Civil Officer of the United States,” removable by impeachment under Article II, Section 4 for “Treason, Bribery, or other high Crimes and Misdemeanors” — or even for misbehaving — because the Supreme Court derives its authority from Article III, not Article II, and the Constitution does not refer explicitly to the removal of Supreme Court justices. No Supreme Court justice has ever been removed, by impeachment or otherwise.

Nor have I found any record of a jurisdictional challenge such as mentioned in the preceding paragraph relating to the impeachment of a Supreme Court justice. Such a challenge may never have been made because only one justice, Justice Chase, has been impeached by the House (1804); he was acquitted by the Senate (1805). Several federal judges of inferior federal courts have been impeached and removed from office (a list of all impeachments is provided here). However, no challenge of this sort appears to have been presented in connection with the impeachment of an inferior Article III judge.

Only one member of Congress, Senator Blount of Tennessee, has ever been impeached (1797), and the Senate dismissed the impeachment (1799). According to Wikipedia,

During the impeachment trial of Senator Blount, it was argued that the House of Representatives did not have the power to impeach members of either House of Congress; though the Senate never explicitly ruled on this argument, the House has never again impeached a member of Congress. The Constitution allows either House to expel one of its members by a two-thirds vote, which the Senate had done to Blount on the same day the House impeached him (but before the Senate heard the case).

Since the only stated bases under Article II, Section 4 for impeachment of “The President, Vice President and all Civil Officers of the United States [are] Treason, Bribery, or other high Crimes and Misdemeanors,” mere lack of “good Behaviour” not amounting to one of those offenses may, but probably does not, warrant impeachment and would in any event not likely result in conviction, of the President, Vice President or other “Civil Officer.” Or, for that matter, of a Supreme Court Justice. On the other hand ….

Conclusions, such as they are

Impeachments have been rare and the process still raises multiple questions to which there are many possible answers, some of which are more improbable than others. Regardless of whether a “misbehaving” Supreme Court justice might be removed by impeachment, and it seems very doubtful that he could be, the Constitution appears to provide no clear means of removing a justice on that or any other ground.

Could a fast and furious President Obama seek to have a Supreme Court justice impeached for ~~refusing to heel~~ deciding that ObamaCare is unconstitutional? I suppose he could, but such an effort probably would not get far and might even make a laughing stock of the President; even in the media.

(This article was also posted at Dan Miller’s Blog.)

Articles written by Dan Miller
Tags: impeachment, judicial review, Obamacare, President, Supreme Court
Categories: Law, News, Politics | Comments (2) | Home

2 Responses to “An Angry President May Have Ways to Tame a Disobedient Supreme Court”

larry | April 5th, 2012 at 11:42 am

Dan
Thank you for addressing this topic. The efforts of News Week and The Daily Beast to cast doubt on the Supreme Court is appalling.
Their efforts are clearly an attempt to cause doubt and unrest among the citizens. If the president and his backers can nullify the actions of the Supreme Court it then becomes a question of what they cannot do.
I have long decried the aggressive unAmerican agenda of this administration. Too many citizens still believe that such things don’t happen here.

Tom Carter | April 9th, 2012 at 7:57 pm

There’s no possibility of a president nullifying a decision of the Supreme Court. That’s basic high school civics. What can happen is Congress (with or without the president’s agreement) can pass legislation that does the same thing (or nearly so) as the law struck down by the Court, writing it so the Court’s constitutional objection will be satisfied.

A major part of the genius of our Constitution was the creation of three equal branches of government and the checks and balances that flow from that. Presidents normally respect the arrangement and are properly deferential to the other two branches, although they jawbone Congress from time to time and run against it in elections, as Truman so famously did. Presidents have also railed against the Court, as FDR did.

What Obama has done — attacking the Court during a State of the Union and re-arguing his case while the Court is deliberating — was simply low-class and stupid. It also revealed a degree of ignorance, apparently, that no undergraduate in Political Science, much less a graduate of Harvard Law School, could get away with. The only other explanation is that even though he knew better, he was appealing to the large number of his supporters who are too ill-informed to know better.

Impeachment is an interesting topic. There isn’t any question that Congress can impeach and try presidents, Supreme Court justices, and other officers of the government. The fact is, impeachment is the ultimate political act, wrapped in legal tissues. Take just the question of what’s an impeachable offense — the practical fact is, as Gerald Ford said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Of course, the Senate may disagree at trail, as they did when Andrew Johnson and Bill Clinton were impeached.