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    April 03, 2023 YourABA | Ethics in View

    Cut to the Chase: Is Supreme Court conduct immune from congressional review?

    By Teresa J. Schmid, J.D., MBA, LPD, CAE, ABA Center for Professional Responsibility

    The following contains purely informational, educational or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.

    Should the justices of the U.S. Supreme Court be held accountable for questionable conduct? If so, how and based on what standards? Those questions are at the heart of the controversy over whether the high court should adopt an enforceable code of ethics for itself, raising issues of jurisdiction, enforceability and procedure. In the absence of such a process, the U.S. Constitution provides only one recourse for disciplining a Supreme Court justice for misconduct, which is impeachment, pursuant to Article II, section 4: “… 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.”  

    The only Supreme Court justice impeached for alleged misconduct resulted in the 1804-1805 impeachment and trial of Justice Samuel Chase. Some framers of the Constitution were still alive and had undiminished memories of the original intent. The House of Representatives impeached Chase for “refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases.” Chase argued that his conduct was not a crime, and therefore it did not meet the standard for impeachment. He prevailed by a single vote in the Senate, suggesting that the rest of the Senate had similar concerns about noncriminal conduct as a ground for impeachment. Chase was restored to office and sat with the court until his death in 1811.

    Justice Chase’s case introduced an interesting element into the grounds for impeachment. U.S. Representative John Randolph of Virginia, who was reportedly the nephew of Constitution framer Edwin J. Randolph, introduced the articles of impeachment at the urging of Thomas Jefferson. They and the members held an expanded interpretation of “high crimes and misdemeanors” as a basis for impeachment that included noncriminal conduct and passed the articles. If fact, there may be alternative grounds for impeachment of Supreme Court justices embedded in the Constitution. 

    Article III, Section 1 of the Constitution is traditionally cited as the source of a common belief that federal judges have lifetime appointments. It says: “The Judges, both of the supreme and inferior courts, shall hold their Offices during good Behavior…” What happens if good behavior fails? Is this another ground for impeachment? There is considerable debate about whether the “good conduct clause” is a separate ground for impeachment. The Chase case suggests that failure of good behavior by a Supreme Court justice warrants the serious investigation that an impeachment inquiry requires, whether or not it results in removal of the justice from office.  

    The U.S. Supreme Court’s position as the highest judicial body in the U.S. legal system entitles the high court to significant deference from other courts, lawyers and the general public. The deference is appropriate and necessary for the court to perform its function. Such deference should not be confused with immunity. The framers of the Constitution considered no public official, no matter how exalted, to be above the scrutiny of the people, and certainly not a justice of the Supreme Court. 

    Good behavior still counts. If in doubt, cut to the Chase.   

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