Can a Supreme Court Justice Be Removed: 5 Fast Facts You Need to Know

By Erin Laviola

Updated Oct 27, 2020 at 1:37pm

Supreme Court.

Supreme Court justices are granted lifetime appointments. The idea behind this was to ensure that justices could operate without being influenced by political operations.

The Constitution does include language explaining that justices can be forcibly removed from the bench. It’s a lengthy process like the removal of a sitting president.

Here’s what you need to know:

1. The Constitution Requires Federal Judges to Exhibit ‘Good Behavior’

The founding fathers established the judicial branch of the federal government in the original Constitution. Article III, Section I states that appointed judges are expected to maintain “good behavior” in order to keep their spot on the bench. But the writers did not explain what sort of behavior would constitute the removal of a judge. The section reads:

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 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

2. Justices Are Categorized Along With the President as Being Subject to Impeachment

Supreme Court justices

A president or vice president can only be removed from the White House if they are first impeached by Congress. The same principle applies to Supreme Court justices because they are classified as “civil officers.” The founding fathers got the idea from England and wrote the practice into the Constitution. Article II, Section 4 lays the foundation for impeachment

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.

The Senate lays out the importance of the impeachment process on its website: “Impeachment is a very serious affair. This power of Congress is the ultimate weapon against officials of the federal government, and is a fundamental component of the constitutional system of ‘checks and balances.’”

3. A Simple Majority Vote Is Required in the House of Representatives to Impeach a President or a Justice

The House of Representatives is the only body with the power to begin an impeachment proceeding. Specific allegations of wrongdoing are drafted in articles of impeachment.

The matter is then debated among the House Judiciary Committee, which has 40 members. 21 votes are required to present the issue before the entire House.

The articles of impeachment would then be debated on the House floor before all 435 representatives. Again, a simple majority vote is enough to approve impeachment. The matter would then move on to the Senate.

4. The Senate Has the Ultimate Power to Remove a Sitting President or Supreme Court Justice

If articles of impeachment are approved by a majority in the House of Representatives, the issue moves on to the Senate. The bar is set much higher in this congressional body. Instead of a majority vote, a full two-thirds of senators have to vote “yes” in order to remove a sitting president or Supreme Court justice.

The impeached official then has to appear before the Senate. It works similar to regular trials in the United States. As explained on the Senate website, a “committee of representatives, called ‘managers,’ acts as prosecutors before the Senate.” The Chief Justice of the Supreme Court presides over the proceedings in the case of presidential impeachment.

The Senate acts as the jury. If the impeached official is convicted in the Senate, then they are immediately removed from office. It is also possible for the senators to bar the now-convicted official from ever holding public office again in the future. There is no appeal.

5. No Supreme Court Justice Has Ever Been Removed and Only One Has Been Impeached

Samuel chase

U.S. Senate Historical Office

Supreme Court Justice Samuel Chase

The only Supreme Court justice to be impeached by the House of Representatives was Samuel Chase in 1804. He was accused of allowing his political bias to influence his decision on the high court. The final straw came in 1803 when he chastised a U.S. circuit court in Maryland. He gave a grand jury charge after the court granted universal male suffrage. Chase also condemned the court for repealing the Judiciary Act of 1801.

The House voted to impeach Chase in March of 1804. During his trial before the Senate in 1805, Chase argued that he could only be removed from the bench for an indictable offense, not for judgment errors or behavior. The Senate agreed and he was exonerated.

As for presidents, three have been impeached: Donald Trump, Bill Clinton and Andrew Johnson. Trump was accused of abuse of power. Clinton was charged with perjury and obstruction of justice. Johnson was impeached in 1868, after removing Secretary of War Edwin Stanton from the Cabinet. All three men were acquitted by the Senate.

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Mainstream Promoter _ucker Carlson

Yesterday, an 18-year-old white man murdered 10 people and wounded three others with an AR-15. The shooter traveled more than 200 miles to get to a predominantly Black neighborhood, where he put on heavy body armor and live streamed his attack as he gunned down people grocery shopping. Eleven of those he shot were Black.

The Buffalo Police Commissioner, Joseph Gramaglia, said, “The evidence that we have uncovered so far makes no mistake that this is an absolute racist hate crime. It will be prosecuted as a hate crime. This is someone who has hate in their heart, soul and mind.”

Before his attack, the shooter published a 180-page screed on Google Drive. It is mostly a list of his weaponry, but in it he also explained his belief in what is known as the “great replacement theory,” embraced by white nationalists. This is the idea that white people are losing economic, cultural, and political power to Black people and other people of color. The name is usually associated with a French agitator who argued in a 2011 book that immigrants were destroying European culture, but the theory that an “other” is destroying traditional society has roots stretching far back in European history. In the twenty-first century, that theory has launched right-wing political parties and shootings around the world.

But the Buffalo shooter’s ramblings drew not only from the European theory—although there is plenty of that in his 180 pages of racism and anti-Semitism. They also drew from America’s own version of a theory of replacement.

That theory comes out of the 1870s and was explicitly connected to voting.

In 1867, Congress began the process of recognizing the right of Black people to have a say in their government. In the Military Reconstruction Act, it called for conventions in former Confederate states to write new state constitutions and permitted Black southerners to register to vote to choose delegates to those conventions. White supremacists scoffed at the idea that formerly enslaved people and those white men willing to work with them could produce coherent constitutions.

When their constitutions not only were coherent, but made adjustments to give more representation to poorer white men than the prewar constitutions had provided, white supremacists set out to make sure voters did not ratify the new constitutions. Needing to avoid the U.S. Army, still stationed in the South to protect Black people and their white allies, the white supremacists dressed up in white sheets to look like dead Confederate soldiers (no one was fooled) and tried to terrorize voters to keep them from the polls.

It didn’t work. Voters ratified the new constitutions, which guaranteed Black voting. Congress readmitted the southern states to the Union, but not until they ratified the Fourteenth Amendment to the Constitution. That crucially important amendment dissolved the state laws discriminating against Black Americans. It established that Black people were U.S. citizens and guaranteed that the U.S. government would see to it that no state could take away the rights of any citizen without the due process of law.

In 1870, white politicians in Georgia tried to undermine their new state constitution. The American people then ratified the Fifteenth Amendment protecting the right of Black men to vote. Congress also created the Department of Justice to enable the federal government to enforce the Fourteenth Amendment, which it promptly did. Attorney General Amos Akerman, a former Confederate who had become a Republican, oversaw more than 1000 cases against the Ku Klux Klan.

With the federal government holding them to account for their racist attacks on Black Americans, southern white supremacists began to argue that their objections to Black equality were actually about voting. By 1871, they argued that Black men voted for leaders who promised roads and hospitals and schools. Those social investments would require tax levies, and since the Black population was poor almost by definition after enslavement, those taxes would fall almost entirely on the white men who owned property. In this telling, Black voting was essentially a redistribution of wealth from those with money to those without, from white men to Black men. It was socialism.

White supremacists began to say that they objected to Black voting and to the governments Black people elected not on racial grounds, but on economic ones. They promised to “redeem” the South from the profligate state governments that they said were bleeding tax dollars out of white landowners to provide services for the poor, generally characterized as Black, although there was no racial monopoly on poverty in the post–Civil War South.

In 1876, the “Redeemers” took over the southern states, thanks partly to the rhetoric that made them sound reasonable to northern observers and largely to the violence that enabled them to keep Black men from the polls. The “Solid South” would stay Democratic until Arizona Republican senator Barry Goldwater, running for president on a platform that called for the federal government to leave states’ racial discrimination alone, won five deep southern states in 1964.

The violence of the 1876 election, along with fears of what their lives would look like in its wake, led Black Americans to leave the South in a movement known as the Exodus. In 1879 and 1880, about 20,000 Black southerners went west to Kansas, Oklahoma, and Colorado. “[T]he whole South…had got into the hands of the very men that held us slaves,” one recalled, “and we thought that the men that held us slaves was holding the reins of government over our heads…. [and] there was hope for us and we had better go.”

About two thousand of those migrants went to Indiana.

Indiana was a contested state in which the Republican and Democratic parties traded power. In 1876, it had gone to the Democrats by a few thousand votes.

When Black Americans began to come to their state, Indiana Democrats immediately howled that the Republicans were importing Black migrants to shift the state back toward the Republicans in the 1880 election. Their clamor was loud enough to cause a Senate investigation. The Democratic majority on the select committee concluded that the Republicans must have induced the Black southerners to leave their region because there was well-paid work and no violence in the South; Republicans retorted that if they were really trying to flood the electoral system, they would have left Black Americans where they were.

But the conspiracy theory took root. White Hoosier Democrats met Black migrants with showers of rocks and vowed to “clean out all the g–d d– –n***ers in the county before the [1880] election.” After a political rally in Rockport, Indiana, Democrats attacked local Black inhabitants, shouting: “Kill them, kill them.” After they shot Uriah Webb, one rioter stood over his body and said, “One vote less,” while the others cheered Democratic presidential candidate Winfield Scott Hancock.

Racial hostility kept the Black population of Indiana small, but it also fed the cultural and social discrimination that made Indiana the beating heart of the resurgent Ku Klux Klan in the 1920s. Under violent con man David Curtis Stephenson, who raped, mutilated, and murdered a female state employee, the Indiana Ku Klux Klan developed the idea of “100% Americanism,” which argued for a hierarchy of races in which the white race was uppermost. Immigrants and Black Americans, that theory said, were destroying traditional America.

That argument has poisoned American politics since the 1870s. Yesterday, the Buffalo shooter echoed the modern European great replacement theory, but he also echoed the racial “socialist” argument of the U.S. He railed against Black Americans, whom he wildly insisted take, on average, $700,000 apiece from white Americans. He urged those who thought like him not to pay taxes, which he said would be wasted on such people. Then he warned white Americans not to become a political minority because minorities are never treated well.

Today’s Republican politicians, including Elise Stefanik of New York, the third ranking Republican in the House of Representatives, have pushed the great replacement theory for years and even after yesterday’s massacre have refused to denounce it. That theory is based in racial hate, but it is not only about racial hate. It is also about politics, and today Republicans are using it to create a one-party state.

“I know that the left and all the little gatekeepers on Twitter become literally hysterical if you use the term ‘replacement,’ if you suggest that the Democratic Party is trying to replace the current electorate, the voters now casting ballots, with new people, more obedient voters from the Third World,” Fox News Channel personality Tucker Carlson, who is one of the country’s leading proponents of the great replacement theory, said on his show. “But they become hysterical because that’s what’s happening actually. Let’s just say it: That’s true.”

It was not true in 1879, it is not true now, and people making this argument have blood on their hands.

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Notes:

https://www.cnn.com/2022/05/15/us/buffalo-supermarket-shooting-sunday/index.html

Campney, B.M.S. (2015). “This Negro Elephant is Getting to be a Pretty Large Sized Animal”: White Hostility against Blacks in Indiana and the Historiography of Racist Violence in the Midwest. Middle West Review 1(2), 63-91. doi:10.1353/mwr.2015.0017.

Report and Testimony of the Select Committee of the United States Senate to Investigate the Causes of the Removal of the Negroes from the Southern States to the Northern States (1880), Senate Report 693. 

https://www.timesunion.com/opinion/article/Editorial-How-low-Ms-Stefanik-16465746.php

https://www.yorkdispatch.com/story/news/politics/2021/04/15/rep-perry-pushes-replacement-theory-during-committee-hearing/7229074002/

https://www.washingtonpost.com/powerpost/rep-stefanik-claims-in-ads-that-democrats-are-seeking-a-permanent-election-insurrection-by-providing-pathways-to-citizenship/2021/09/16/7372011a-16eb-11ec-a5e5-ceecb895922f_story.html

https://www.washingtonpost.com/politics/2022/05/09/nearly-half-republicans-agree-with-great-replacement-theory/

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