8

Hypothetically, an individual has been nominated by the President to fill an open position on the US Supreme Court.

The Senate has held committee hearings, the entire Senate has advised and consented, and the new Justice has been sworn in and started work.

Then, it becomes absolutely certain that the new Justice has acted in the past in a reprehensible (possibly criminal) fashion, and has lied about his behaviour to Congress.

is there anything that any part of the government (President, Congress, or balance of Supreme Court) can do to remove the new Justice?

2 Answers 2

13

SCOTUS Justice Samuel Chase was impeached though not convicted by the Senate. Here is a list of federal judges investigated for impeachment, and a list of federal officials impeached. The first federal judge to be removed from office was John Pickering, and the most recent is Thomas Porteous. Only Congress has the power to impeach: SCOTUS cannot review an impeachment, and the presidential pardon power does not extend to impeachments.

Article 3, Section 1 of the Constitution states that "... The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour..."; Article 1, Section 2, Clause 5 says "The House of Representatives ...shall have the sole Power of Impeachment", and Article 1, Section 3, Clauses 6 says "The Senate shall have the sole Power to try all Impeachments". 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. Article 2, Section 4 says "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".

Taken together, one might think that a civil officer can only be removed for criminal conduct while in office. This is by no means guaranteed, since it does not say that explicitly, and it is up to the Senate to determine whether, for example, lying during a confirmation hearing about previous conduct would satisfy the requirements of Article 2, Section 4. In order for them to make that determination, the House would have had to also previously decided that the alleged situation does constitute the conditions in that clause, since an official has to be both impeached and convicted, involving both houses. The conviction furthermore requires a 2/3 majority of the Senate ("no Person shall be convicted without the Concurrence of two thirds of the Members present").

9
  • I think it’s best to clarify that it is up to the House to decide what constitutes high crimes and misdemeanors, but 2/3rds of the Senate needs to agree.
    – Viktor
    Sep 22, 2018 at 20:24
  • @Viktor So, the House doesn't decide what constitutes high crimes and misdemeanors?
    – DJohnM
    Sep 23, 2018 at 4:32
  • @DJohnM no it does through impeachment
    – Viktor
    Sep 23, 2018 at 4:33
  • And, according to your first comment, the Senate has veto power? Like, "Don't bother, House, we'll never convict on that crime?"
    – DJohnM
    Sep 23, 2018 at 4:38
  • 2
    @AzorAhai: Not so. If the Senate decided to refer it to a committee, and then tabled and ignored the matter (a common way of disposing of unwanted business in the American system), then there is no organ in the federal government with the power to compel the Senate to hold a vote. In particular, the Supreme Court won't take the case.
    – Kevin
    Jan 16, 2019 at 4:34
2

As the answer by user6726 correctly states the House of Representatives may, if it sees fit, pass a Bill of Impeachment. (This requires only a majority vote of the House, not a 2/3rds vote as a comment states). The House may specify anything it pleases as grounds for impeachment, it need not be a criminal offence (although historically it usually has been).

If such a bill is passed, it is referred to the Senate, which may decide what procedures it will use. They may but need not include a formal trial. Such procedures need not be the same as in previous impeachment proceedings.

If the Senate votes by a 2/3rds or higher vote for conviction, the person is removed from office. The Senate may, but need not, add to the removal a prohibition on the person ever having office under the United States in the future.

The Presidential pardon power does not extend to cases of impeachment.

Aside from the impeachment process, there is no legally valid power or process to remove a Justice. Even if a Justice was convicted of a crime and imprisoned, the Justice would stay in office until and unless s/he was impeached and removed, or until s/he resigned or died. A citizen petition would have no legal effect unless it helped convince the House and Senate to move forward with an impeachment and removal process.

Historically, Justices who seemed likely to be impeached and removed have in several cases resigned instead. The case of Justice Abe Fortas is one such case.

Also, when a Justice seemed too ill or impaired to function properly in office, other members of the Court have often persuaded the affected Justice to Resign. Justice William O. Douglass is a case in point. But there is no power to force a resignation.

0

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.