Scalia made the comments during a court hearing in a case challenging the race-conscious admissions plan at the University of Texas at Austin. You can read the transcript here, but suffice here to say that they were labeled downright racist by critics and simply wrong by the more generous.
Not surprisingly, there are new calls for Scalia to leave the court, including a petition on Change.org. Given that Supreme Court justices are appointed for life, is it possible for them to be forced off the bench if they don’t want to go?
Yes — but it’s a most highly unlikely prospect.
The Constitution grants Supreme Court justices a lifetime appointment if they choose to stay by not specifying a time or age limit of service. The purpose of a lifetime appointment was to give them freedom to make decisions without interference from the executive or legislative branches of government. But the Constitution leaves open the possibility of impeachment and removal by Congress. In U.S. history, one justice was impeached, but not convicted, and one justice resigned under the threat of impeachment.
Section 1 of Article 3 of the Constitution says:
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 Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
The single justice impeached but subsequently not forced out was Samuel Chase, a longtime Maryland legislator who was appointed to the court as an associate justice by President George Washington on Jan. 26, 1796, and who served there until his death on June 19, 1811.
In 1804, eight articles of impeachment accused him of allowing his political views to interfere with his decisions. This description of events comes from the U.S. Senate’s website:
Samuel Chase had served on the Supreme Court since 1796. A staunch Federalist with a volcanic personality, Chase showed no willingness to tone down his bitter partisan rhetoric after Jeffersonian Republicans gained control of Congress in 1801. Representative John Randolph of Virginia, at the urging of President Thomas Jefferson, orchestrated impeachment proceedings against Chase, declaring he would wipe the floor with the obnoxious justice. The House voted to impeach Chase on March 12, 1804, accusing Chase of refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases. The trial managers (members of the House of Representatives) hoped to prove that Chase had “behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard.” Highlighting the political nature of this case, the final article of impeachment accused the justice of continually promoting his political agenda on the bench, thereby “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan.”On November 30, 1804, the Senate appointed a committee to “prepare and report proper rules of proceedings” for the impeachment trial. When they took up the case against the Federalist justice in January 1805, the Senate consisted of 25 Jeffersonian Republicans and nine Federalists. Chase appeared before the members on January 4, 1805, to answer the charges. He declared that he was being tried for his political convictions rather than for any real crime or misdemeanor and requested a one-month postponement to prepare a defense. The Senate agreed and the trial began in earnest on February 4.Chase’s defense team, which included several of the nation’s most eminent attorneys, convinced several wavering senators that Chase’s conduct did not warrant his removal from office. With at least six Jeffersonian Republicans joining the nine Federalists who voted not guilty on each article, the Senate on March 1, 1805, acquitted Samuel Chase on all counts. A majority voted guilty on three of the eight articles, but on each article the vote fell far short of the two-thirds required for conviction. The Senate thereby effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions. Chase resumed his duties at the bench, where he remained until his death in 1811.
On May 15, 1969, Supreme Court Justice Abe Fortas resigned under threat of impeachment hearings. Fortas, appointed to the bench in 1965, was found to have accepted a position from a foundation to provide counsel for $20,000 annually for life. The foundation was run by the family of a Wall Street titan who was later charged and found guilty of securities violations.
Barnes wrote a story in 2010, titled “Impeachment calls part of life for a Supreme Court justice but few get very far,” which notes that impeachment calls for a number of justices have been made over time.
Justices, of course, can’t be voted out. They serve for life, or as the Constitution puts it, “shall hold their Offices during good Behavior.”
And there’s this:
Those old enough will remember “Impeach Earl Warren” billboards that sprouted across the South after the court’s desegregation rulings in the 1950s. And there were two impeachment attempts against Justice William O. Douglas: one for granting a brief stay of execution in the Rosenburg spy case and another for alleged financial improprieties.Gerald R. Ford, then the House minority leader, led the latter, and the House Judiciary Committee held hearings in 1970. No credible evidence emerged, and the hearings closed without a public vote.“But Douglas used to say that he was terrified he was going to be thrown off,” said [Dennis] Hutchinson, a former clerk to the justice.
You can read the whole story here.