An attempt to check the Supreme Court’s power

Progressive members of the House have put forth articles of impeachment against two conservative Supreme Court justices. The impeachment won’t actually advance, but it may help chip away at the Court’s irreproachable image.

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“Too Much Power”

Democrats have been bristling about the Supreme Court for a while now, but yesterday, progressive House members introduced a new, and more official, mark of disapproval. Representative Alexandria Ocasio-Cortez put forth articles of impeachment against Justices Clarence Thomas and Samuel Alito, saying that they failed to properly disclose gifts and recuse themselves from certain cases—Alito from matters where he had a “personal bias,” and Thomas from matters involving the legal or financial interests of Ginni Thomas, his wife.

The tenor of criticism of the Court has shifted significantly in recent years, especially after its conservative majority overturned Roe v. Wade in 2022. Revelations about Justice Thomas’s spouse’s involvement in efforts to overturn the results of the 2020 presidential election, followed by reporting on his prolific acceptance of gifts from wealthy conservatives, heightened public scrutiny. (A lawyer representing Thomas issued a statement in 2023 denying any “willful ethics transgression” and stating “any prior reporting errors were strictly inadvertent.”) And the flags flying outside of Alito’s homes in the years after January 6, both associated with the “Stop the Steal” movement—he blamed his wife for flying them, and claimed they weren’t aware of one flag’s “Stop the Steal” connotation—did little to boost Americans’ confidence that judges are putting impartiality over ideology. Several decisions in the Court’s latest term were split across partisan lines—notably the presidential-immunity ruling that held that former presidents, including Donald Trump, are immune from federal prosecution for official actions taken while in office, but also decisions on criminalizing homelessness and kneecapping the regulatory state.

House Democrats have begun to take public action to reform the Court, and to shore up their response in preparation for a possible future Trump presidency: Late last month, Ocasio-Cortez and Representative Jamie Raskin wrote a letter to Chief Justice John Roberts expressing alarm at what they said is the “full-blown legitimacy crisis” on the Court. And Democrats have promised “aggressive” oversight and legislative measures in response to the immunity ruling. (The Supreme Court did not immediately respond to a request for comment.)

There is virtually no chance that the new impeachment articles will pass the Republican-controlled House, so they’re likely to end up a symbolic gesture. But the symbolism matters. These articles could help chip away at the perception that Supreme Court justices can do whatever they want. That perception is based in reality: The policies governing justices’ behavior have always been loose and informal, and the new code of conduct adopted late last year lacks a clear enforcement mechanism (other federal judges are subject to a more stringent system).

As my colleague Adam Serwer, who writes about politics and the Supreme Court, explained, few powerful people are willing to take on the Supreme Court. Democratic politicians, he told me, have a reasonable fear of getting on the justices’ bad side and prejudicing them against liberal-aligned cases. “The same reason attacking the Court is necessary is the same reason why it’s so perilous: They have too much power and can abuse it without fear of accountability or consequences,” Adam said.

Impeachment sounds extreme. But, compared with the rarity of presidential impeachment, a solid historical precedent exists for impeaching judges, Kimberly Wehle, a constitutional-law professor at the University of Baltimore (and an Atlantic contributor), told me in an email. Only one Supreme Court justice has ever been impeached—Samuel Chase in 1804—and the Senate acquitted him. But over the years, 14 other federal judges have been impeached, and eight of those were removed from office (others stepped down in the face of scandal). And at this moment, impeachment is the only available tool for holding Supreme Court justices accountable, Wehle said.

Ocasio-Cortez’s statement on the impeachment articles cast them not only as a way to institute a check on the justices’ power in this moment, but also as a referendum on the Court’s failures to properly govern itself: “Given the Court’s demonstrated inability to preserve its own legitimate conduct, it is incumbent upon Congress to contain the threat this poses to our democracy,” she said. Ocasio-Cortez’s move sends a message that House Democrats think the Court has entered dangerous territory. But sending a message is probably as far as this can go.

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Stephanie Bai contributed to this newsletter.

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