Article III of the Constitution, which defines the roles and powers of the court system, says:
“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…”
Congresswoman Alexandria Ocasio-Cortez is taking the Framers at their word; this week she introduced articles of impeachment against both Clarence Thomas and Samuel Alito.
While the Republicans on this Court have engaged in a decades-long steady torrent of corruption — from Roberts’ wife making over $10 million hustling lawyers into law firms that practice before the Court, to Thomas’ million-dollar vacations and mother’s rent-free life, Alito’s paid speeches and luxury vacations with billionaires, Gorsuch’s and Barret’s fealty to the fossil fuel industry that his mother and her father served, and Kavanaugh’s alleged gambling debts — Congress has so far overlooked its obligation to, as Article III, Section 2 says, “regulate” the Supreme Court.
Her impeachment resolution calls out the two most egregious examples, Thomas and Alito, for failing to disclose gifts from billionaires with issues before the Court. She also nails them both for refusing to recuse themselves from cases where they have obvious conflicts, like Thomas’ wife participating in January 6th (and taking payments from rightwing billionaires’ foundations), and Alito’s flag-waving support of that effort to end our democracy.
Most recently, we’ve discovered that billionaire-with-interests-before-the-Court Harlan Crowe even paid for the Thomas’ to take a luxury, all-expenses-paid trip to Putin’s hometown.
Any other federal judge in America would have been taken off the bench had he or she behaved the way these two have.
Rightwing media is laughing at Ocasio-Cortez, pointing out that since Republicans control both the House Judiciary Committee and the entire House itself, her impeachment resolution won’t even make it out of committee. They shouldn’t be so sure of themselves.
First, there’s a very real possibility — in part because of this Court’s extremist rulings, particularly overturning Roe v Wade — that the House will fall to Democratic hands next January and her effort could have a new, albeit uphill, life.
But second, and most important, it’s possible that her highlighting the corruption of at least two Republicans on the Court may cause some of the others — particularly Roberts, Barrett, and Kavanaugh — to become more moderate in their rulings going forward.
I detail why at length in my book The Hidden History of the Supreme Court and the Betrayal of America, but here’s a quick synopsis.
The last time the Supreme Court experienced such a crisis of confidence with the American people was in the 1935-1937 era, and the way it resolved is fascinating.
Back then, four of the justices, Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, were collectively known as the Four Horsemen. They were invariably joined by one of the other justices — most frequently Owen Roberts — to strike down President Franklin D. Roosevelt’s popular New Deal legislation that attempted to address unemployment and poverty.
The Four Horseman claimed to be originalists or “strict constructionists” who somehow could read the Founders’ intent from the Constitution, disregarding the historical reality that the founders were not even remotely of a single mind.
Ideologically, these four justices were the predecessors of conservative ideologues on the Supreme Court such as Samuel Alito and Clarence Thomas. Economically, they embraced laissez-faire economics and rejected any federal powers that were not explicitly granted by the US Constitution.
For 40 years during the preceding Lochner era, the Court had struck down dozens of state laws protecting workers, including women and children. During the period between 1897 and 1929, the Court was ruling largely with the booming industrialist economy, and its conservative members saw the labor movement as disruptive rather than positive.
However, with the onset of the Republican Great Depression, these industrialists lost the popular support they had enjoyed in the aftermath of the Haymarket bombing — but the ever-conservative Supreme Court had not caught up with popular opinion.
In 1935, the Supreme Court ruled that both the Agricultural Adjustment Act and the National Industrial Recovery Act were unconstitutional. The rulings gutted a large piece of Roosevelt’s New Deal legislation.
The Agricultural Adjustment Act had passed in 1933 with 73 percent of the House of Representatives voting for it. The bill passed the Senate with 64 percent of the Senate voting for it. After it was struck down, William Leuchtenburg writes for Smithsonian magazine:
“Many farmers were incensed. On the night following [Justice Owen] Roberts’ opinion, a passerby in Ames, Iowa, discovered life-size effigies of the six majority opinion justices hanged by the side of a road.”
The National Industrial Recovery Act, with its famous “Blue Eagle” logo, had likewise passed with 80 percent of the House voting for it and 70 percent of senators voting for it.
When the Supreme Court used its power of judicial review to overturn these laws, it wasn’t just viewed as an assault on FDR’s New Deal. It was, in the opinion of many Americans (and FDR himself), an assault on the very basis of our democratic republic.
Shortly before Roosevelt was reelected in 1936, the Court went even farther and struck down a New York State law that established a minimum wage for women and children in Morehead v. New York ex rel. Tipaldo. The pendulum of popular opinion swung against the Court almost overnight. One Republican newspaper in New York declared its opposition to the ruling:
“The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”
As historian David B. Woolner, author of The Last 100 Days: FDR at War and at Peace, noted:
“Over … 13 months, the court struck down more pieces of legislation than at any other time in U.S. history.”
In 1937, the National Labor Relations Act (cementing workers’ right to join a union and the right of unions to exist) and the Social Security Act were on their way to the Court. Considering how the Four Horsemen had ruled during FDR’s first term, Roosevelt knew that he needed to do something or risk losing both pieces of legislation along with the collapse of his entire New Deal agenda.
With the New Deal on the line, Roosevelt — much like AOC today — went on the attack.
On February 5, 1937, just months after his landslide reelection, he announced his plan: he asked Congress for the authority to appoint one new justice for each justice then on the bench over 70 years old.
In 1937, the average life expectancy for men in the United States was only 58 years. The average age of the Supreme Court justices at the time was 71 years old, and six of the justices were 70 or older. A book mocking the Court, called The Nine Old Men, “was rapidly moving up the bestseller lists.”
Roosevelt’s plan took advantage of that public opinion that the age of the justices was negatively affecting the Court’s decision-making along with the Court’s ability to quickly rule on cases.
FDR directly called into question the “capacity of the judges themselves” to dispose of the growing number of cases facing federal courts. The United States’ population had nearly doubled between 1900 and 1936, and the number of cases facing federal court dockets had exploded. Citizens were waiting longer and longer to go in front of older and older judges.
Roosevelt’s plan would have immediately given him six appointments to the Supreme Court and up to 44 appointments for federal lower courts. Roosevelt argued that “a constant and systematic addition of younger blood will vitalize the courts.”
On March 9, 1937, Roosevelt told the nation that the Court was ruling not just against himself and Congress, but against the will of the American people, themselves.
“Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government—the Congress, the Executive and the Courts.
“Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the three horses.
“It is the American people themselves who are in the driver’s seat. It is the American people themselves who want the furrow plowed. It is the American people themselves who expect the third horse to pull in unison with the other two.
“The Courts,” Roosevelt boomed, “have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.”
Roosevelt’s critics were aghast at his plans. They claimed he was trying the “pack the Court” with justices that would simply be his yes men. Reacting to his critics, Roosevelt cut to the heart of the matter:
“[I]f by that phrase the charge is made … that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint Justices who will act as Justices and not as legislators—if the appointment of such Justices can be called ‘packing the Courts,’ then I say that I and with me the vast majority of the American people favor doing just that thing—now.”
But Congress never voted on the plan, because the need for it vanished virtually overnight. (It’s unclear whether it would have succeeded, or if a more moderate plan that would have given him only two or three justices might have succeeded. Historians still debate the issue.)
The need for Roosevelt’s court packing plan ended with a decision on the minimum wage, a crucial component of the New Deal.
On March 29, 1937, a Washington state minimum wage law came before the Court in West Coast Hotel Co. v. Parrish. The law in question was nearly identical to a New York state law that that had come before the Court a year earlier. But this time, Justice Owen Roberts abandoned the Four Horsemen to uphold Washington state’s minimum wage law in a 5-4 decision.
In a series of 5-4 decisions two weeks later, the court upheld the National Labor Relations Act as constitutional. The ruling was astonishing, and Owen Roberts was the justice who’d swung the Court to the left.
Labor Secretary Frances Perkins was close friends with Justice Roberts’s wife, Elizabeth. When the decisions came down, according to Perkins’s biographer Kirstin Downey, “she rushed that afternoon to Roberts’ home” and “threw her arms around the man and hugged him.”
“Owen, I’m so proud of you,” Perkins told the Supreme Court justice. “A man of your standing and intelligence who is not afraid to change his mind!”
Downey writes of how Roberts was embarrassed by the affection, but also very pleased. “Really, do you think so?” he replied to Perkins.
Less than two months later, the Court declared that Social Security was constitutional.
Thus was the New Deal saved from execution on the Supreme Court’s bench. Social Security was salvaged and the National Labor Relations Act gave labor and unions a lifeline after years of fighting to merely exist without its leaders and members being murdered.
Shortly after the Supreme Court upheld Social Security, Willis Van Devanter, one of the Four Horsemen, retired from his position after 26 years on the bench. This gave Roosevelt his first Supreme Court pick: Hugo Black. Less than a year later, Roosevelt got his second pick when Justice George Sutherland announced that he was retiring.
By the end of his 12-year presidency, Roosevelt ended up appointing nine members to fill eight of the nine seats on the Supreme Court (one, Byrnes, only served a year and a half and was then replaced by FDR).
Roberts’s about-face in West Coast Hotel was referred to at the time as “the switch in time that saved nine.” And it’s possible — although not definitively probable — that we could see a similar dynamic at play today with AOC’s impeachment resolution.
As we saw with the two efforts to impeach former President Trump, any effort to remove a high official from office by that route is a long shot. Only one Supreme Court justice has ever been impeached — Samuel Chase in 1805 — and he was notoriously corrupt (and often drunk).
But as FDR’s effort to take on the Republicans on the Court ultimately succeeded, sometimes the very process of highlighting their unpopularity and inappropriate judgement can lead to a positive change.
And now, also this week, Senators Sheldon Whitehouse and Ron Wyden demanded that the Justice Department appoint a special counsel to investigate Clarence Thomas for violations of ethics and tax laws. As well, of course, as Representative Alexandria Ocasio-Cortez introducing those articles of impeachment against both Thomas and Samuel Alito.
The country owes Representative Ocasio-Cortez — and Senators Whitehouse and Wyden — a big thanks along with an overwhelming reelection victory for Democrats this fall.
