The Washington PostDemocracy Dies in Darkness

Gerald Ford tried to impeach a Supreme Court justice — and failed

William O. Douglas in the 1930s. (Library of Congress)
7 min

A member of Congress called for the impeachment of a sitting Supreme Court justice, complaining that the justice had supported the idea that violence and rebellion against the government may be justified under some circumstances. The member noted that the code of ethics for federal judicial officers, which included the concept of recusal in the face of conflicts or the appearance of impropriety, did not apply to the Supreme Court, so that the only recourse against the justice was impeachment.

This was not April 2022, but April 1970. The speaker was not Ilhan Omar, but Gerald Ford, then House minority leader and later president of the United States. And the justice in question wasn’t Clarence Thomas, but William O. Douglas, appointed to the court by Franklin D. Roosevelt in 1939.

The revelation by The Washington Post’s Bob Woodward and Robert Costa of text messages from Thomas’s wife, Virginia “Ginni” Thomas, to President Donald Trump’s chief of staff, Mark Meadows, urging him to pursue efforts to overturn the results of the 2020 election, has occasioned a firestorm of criticism of Justice Thomas. Many Democrats and liberal groups have demanded that Thomas, who refused to recuse himself in any of the election-related litigation, step down or be impeached.

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Historians immediately searched for a parallel, with most focusing on the only impeachment of a sitting justice, in 1805. The justice was Samuel Chase, an intensely partisan opponent of President Thomas Jefferson. The House impeached him, but the Senate refused to convict and remove him.

Yet this impeachment, early in the Republic, has little to teach us about the precedent of seeking to dislodge a modern Supreme Court justice. Ford’s speech on April 15, 1970, is much more instructive in understanding the dynamics that might come into play should the House take up impeachment articles against Thomas.

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Ford’s speech came at the beginning of an era of hyperpartisan wrangling over Supreme Court nominations. Toward the end of Lyndon B. Johnson’s term in June 1968, 77-year-old Chief Justice Earl Warren sent a letter to the president saying he would step down once his successor was confirmed. Republican presidential candidate Richard M. Nixon’s friends in the Senate immediately vowed to fight any effort by a “lame duck” president (Johnson had announced he wouldn’t seek reelection) to appoint a new chief justice in the waning days of his administration.

President Johnson nominated liberal Associate Justice Abe Fortas to fill the chief justice position. Republicans and journalists began to dig up dirt on Fortas, mainly his connection to a financier named Louis Wolfson, who was under investigation by the Securities and Exchange Commission. Fortas, it turned out, had taken a retainer from a Wolfson foundation and was providing legal advice to Wolfson while on the court.

Fortas withdrew his name in October 1968 but remained on the court. The Nixon forces smelled blood in the water and continued to investigate the Fortas-Wolfson relationship, eventually persuading Warren to pressure Fortas to resign. Nixon now would appoint both Warren’s and Fortas’s successors.

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Nixon’s nomination of Warren Burger to become chief justice was not particularly controversial, but political payback for the Fortas ouster was in the air when Nixon tried to appoint a conservative Southerner to take Fortas’s place. Nixon had campaigned against the liberal Warren Court, especially on issues related to school desegregation and crime. His hope was to turn the solidly Democratic South into the solidly Republican South, and he nominated Clement Haynsworth of South Carolina to replace Fortas.

Recognizing the stakes, the Democratic-led Senate voted down the Haynsworth nomination in November 1969. Nixon then nominated another Southerner, Harrold Carswell, an openly racist federal judge in Florida; again, the Senate voted him down. Nixon angrily told the press it was clear he could not appoint a nominee from the South and settled for Harry Blackmun of Minnesota to fill the seat.

In was in this context that scholars thought Nixon sent Ford to the House floor to seek retribution with the call for the impeachment of Justice Douglas. Douglas had many detractors. Like Fortas, Douglas took money from questionable characters, some of whom had ties to the criminal underworld. His personal life was plagued with failed marriages. And he wrote and published a small book in early 1970 titled “Points of Rebellion,” which conveyed his thesis that armed rebellion against the government might be necessary to fight “the Establishment” that increasingly was illegally surveilling and oppressing its citizens.

“We must realize that today's Establishment is the new George III,” Douglas wrote. “Whether it will continue to adhere to his tactics, we do not know. If it does, the redress, honored in tradition, is also revolution.”

Ford all but acknowledged in his speech that his attack on Douglas was prompted by the two failed nominations of Southern judges. Another member, Jimmy Quillen (R-Tenn.), was plain about it: “Perhaps after November, or when Jus­tice Douglas is impeached, it will be pos­sible for a Southerner to be nominated and confirmed to the Supreme Court. It is about time.”

Ford, a Yale Law School graduate, was also clear that he thought the standard for impeaching a justice was less exacting than that for an elected official. Citing the “Good Behavior” clause in the Constitution, Ford argued that judges were not appointed for life but were subject to removal by impeachment. Elected officials, he pointed out, were answerable to the electorate at regular intervals, which is why there have been so few successful impeachments of presidents, senators and representatives. Judges, on the other hand, had been brought up on impeachment charges in greater numbers because that is the sole remedy for serious wrongdoing in office.

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In the end, Ford, who would come to know better than any elected official the arguments about what constitutes an “impeachable offense,” gave his guidance. “The only honest answer,” he contended, “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.”

The attempt to impeach Douglas failed. Like many things in American history, the story took a back seat to crises that enveloped the Nixon presidency at the time. On the day Ford spoke, three Apollo 13 astronauts were struggling to get back to Earth in their crippled spacecraft. Two weeks later, Nixon invaded Cambodia to clear out North Vietnamese sanctuaries. Days later, Ohio National Guard members shot and killed four students at Kent State University.

Today’s hurricane of crises may cause people to move on from the Ginni Thomas text scandal. But if Democrats do pursue impeachment of Clarence Thomas, history suggests political payback could be a top motive. Democrats are still looking for a reckoning for the Merrick Garland snub and the appointment of Amy Coney Barrett in the days before the 2020 election. A Thomas impeachment would probably fail in the Senate, but it might satisfy the need for political revenge — and keep a spotlight on the Jan. 6 Capitol riot and events surrounding it.