Rep. Alexandria Ocasio Cortes, or AOC for short, wants to impeach Justice Clarence Thomas, which is easy to laugh off unless you consider the outsized role that the Squad played in pushing the first impeachment of President Donald Trump.
“Clarence Thomas should resign. If not, his failure to disclose income from right-wing organizations, recuse himself from matters involving his wife, and his vote to block the Jan 6th commission from key information must be investigated and could serve as grounds for impeachment,” AOC tweeted.
The rationale, in this case, would be very shaky and would focus not even on what the justice did but questionable text messages from his wife Ginni Thomas to Trump’s White House Chief of Staff Mark Meadows questioning the legitimacy of Joe Biden’s victory in the 2020 election.
In one sense, it almost seems more unusual that only one Supreme Court justice was impeached by the House of Representatives compared to three presidents. Presidents are elected, and thus would seemingly have a higher bar for removal in a democracy than an appointed lifetime position.
Still, there have been many movements to impeach Supreme Court justices. Recall that not that long ago, Squad member Rep. Ayanna Pressley introduced a resolution to impeach Justice Brett Kavanaugh in 2019. It went nowhere. Only three such efforts really gained any ground.
The one time it happened was against Justice Samuel Chase, a signer of the Declaration of Independence and appointee of George Washington. After the 1800 election, President Thomas Jefferson’s Democratic-Republican Party had a big majority in Congress, but the electorally vanquished Federalist Party still had a vice grip on the Supreme Court. So, Jefferson’s party in the House approved eight articles of impeachment regarding Chase’s work as a trial judge on circuit courts. Back then, Supreme Court justices regularly had the extra duty of serving on the circuit courts.
There is some similarity here to the present-day circumstances. While Jeffersonians accused Chase of being too openly political to serve in the position of a Supreme Court justice, today the left claims Justice Thomas’s spouse is too openly political.
With Chase, it wasn’t the spouse. The justice publicly campaigned from the bench for the reelection of President John Adams over Jefferson during the 1800 election, which didn’t go well when Jefferson won. In 1803, Chase said Jefferson’s policies would lead to “a Mobocracy, the worst of all possible governments.”
On March 12, 1804, the House voted to impeach Chase on charges of malfeasance. One article of impeachment accused the Supreme Court justice of “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.”
The Senate held the trial in January 1805 and had the numbers to remove Chase from office, with 25 Jeffersonian senators and just nine Federalists. Vice President Aaron Burr, shortly after killing Alexander Hamilton in an illegal duel, presided over Chase’s Senate trial.
In the end, at least six Democratic-Republican senators voted with the nine Federalists to acquit Chase on each article of impeachment in March 1805. A simple majority voted “guilty” on just three of the eight articles. but that total was well below the two-thirds needed to remove Chase from office. Chase served on the high court until his death in 1811—outlasting Jefferson’s presidency.
It would be a long time before politicians tried this again.
In the early 1960s, there was a haphazard movement among rabid segregationists to impeach Chief Justice Earl Warren over civil rights decisions by the high court—namely the 9-0 ruling in Brown v. Board of Education. Advocates bought billboards calling for impeachment. But that’s about as far as it went.
However, the Lyndon B. Johnson-appointed justice to fill the retiring Warren’s vacancy ultimately had to resign to dodge impeachment.
Abe Fortas was a Washington super lawyer and LBJ ally who the president wanted to make chief justice to replace Warren. He had to settle for making him an associate justice. Fortas left a $200,000 per year job as a lawyer to earn $39,000 on the Supreme Court and looked for ways to make up for it.
Republicans questioned the $15,000 that Fortas received to teach at American University while sitting on the high court. Later, Life magazine broke a story about Fortas’s connections with a private foundation established by Wall Street financier Louis Wolfson. Starting in 1966, Fortas took a $20,000 annual fee to provide legal advice and attend an annual meeting from the Wolfson Foundation. This continued after he moved to the high court in 1968. Fortas arranged for his wife to receive the payment each year after his death. The payments came when Wolfson was under federal investigation, indicted on charges of securities fraud and later convicted.
Fortas gave the money back when it became a controversy, but he also wrote a letter to the White House promoting two of Wolfson’s companies at a time when the companies were under federal investigation.
Many members of Congress from both sides threatened impeachment, and after Richard Nixon was elected, Fortas resigned in May 1969 when it was clear he wouldn’t have a friendly White House to offer political protection.
That was the end of the scandal. Never charged, Fortas continued to deny any wrongdoing, and returned to his lucrative law practice—even arguing cases before court he resigned from.
A couple of years later, Justice William O. Douglas finances and personal life would be scrutinized, as House Minority Leader Gerald Ford, R-Mich., pushed impeachment of the justice appointed to the high court by President Franklin Roosevelt in 1939.
Despite the House Democrat majority in 1970, impeaching Douglas was possible. Ford raised an concerns about Douglas taking $12,000 in payments from a hotel and casino mogul. He said Douglas’ lifestyle “defied the conventions and convictions of decent Americans.” On the House floor, Ford called Douglas “unfit” to serve on the Supreme Court, and that, “I would vote to impeach him right now.”
So, 52 Republicans and 52 Democrats supported a special committee to review the Douglas’s financial dealings. It was during his push to impeach Douglas that Ford made what became a famous statement.
“An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history,” Ford said. “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.”
A House Judiciary special subcommittee was established with three Democrats and two Republicans. After seven months with no public hearings and putting no witnesses under oath, the subcommittee voted in December 1970 that there were no grounds for impeachment.
There is of course irony that Ford became both vice president and president because of individuals that resigned to avoid impeachment. In 1975, the first year into the Ford presidency, Douglas retired.
AOC’s threat against Thomas won’t likely gain traction unless House Speaker Nancy Pelosi sees fundraising potential from such a move from the party’s base. But unlike the Trump impeachments, the base isn’t clamoring to go after Thomas. If it did reach that point, politics likely would be irredeemably polarized.
Fred Lucas is chief national affairs correspondent for The Daily Signal and the author of “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump.”