New York Representative Alexandria Ocasio-Cortez's (AOC) recent announcement of impeachment charges against the US Supreme Court’s two most conservative justices appears entirely political in both motive and timing. Democrat Senators have sought to tag-team with AOC by calling for a special counsel investigation of the same justices in an effort seemingly designed to give a politically sputtering President Biden time to catch some oxygen. Both attempts threaten the fundamental principles of US constitutional law. However, they will almost certainly fail to unseat Justices Samuel Alito and Clarence Thomas or to distract voters from a visibly deteriorating commander-in-chief.
A History Lesson for AOC
Only one US Supreme Court Justice was ever the subject of impeachment proceedings: Samuel Chase, in 1804. Chase was impeached in the House, but the Senate declined to convict. The effort by Thomas Jefferson and others to undermine Samuel Chase in 1804 bears remarkable parallels to AOC’s “watch-the-birdie” impeachment initiative and provides a strong indication that her virtue-signaling effort is similarly fated to failure.
The impeachment of Samuel Chase was overtly partisan, likely motivated in part by resentment by a Jefferson presidency eager to consolidate power but foiled by the previous year’s Supreme Court decision in the seminal case of Marbury v. Madison. Marbury addressed Jefferson’s ability to undermine the judicial appointments of his predecessor, John Adams. Jefferson lost. The filing of impeachment charges against Chase was an effort to compel Court subservience at a time when Jefferson’s Democratic-Republican Party was in control of both legislative chambers and could potentially impeach using solely its membership.
Marbury is one of the most important US Supreme Court decisions in America’s history because it laid down the "unalienable" line in the sand of government power. Jefferson and others believed Congress or the president should have control over federal judges: The eight articles of impeachment against Chase challenged his political views. The failed impeachment coup against the Court secured Marbury’s holding that the US Constitution is the actual law of the land, not just a sweet-sounding compendium of platitudes. The case established the boundaries between the executive and judicial branches of the federal government, holding that courts have the power to invalidate laws they determine violate the Constitution under what is known as “judicial review.”
AOC, et al., precisely target this foundational boundary in their attacks against Justices Alito and Thomas. As with Chase, her impeachment filings seem politically timed and motivated. The resolution against Justice Clarence Thomas alleges three articles: He failed to disclose gifts; that he refused to recuse himself from cases involving his wife’s a) financial interests, and b) her “legal interests.” The resolution against Justice Samuel Alito, Jr. contains two articles: He failed to disclose gifts and refused to recuse himself from cases in which he had a personal interest.
A High Bar
AOC asserts that these transgressions constituted “high crimes and misdemeanors,” a “constitutional crisis,” and “a grave threat to American rule of law, the integrity of our democracy, and one of the clearest cases for which the tool of impeachment was designed.” Yet the gist of the complaint relates to these conservative justices’ views about the events of January 6:
“In January 2021, Justice Alito allowed an upside-down American flag to be flown outside his primary residence for several days. At the time, an upside-down American flag was widely understood to be an expression of support for the criminal efforts to overturn the results of the 2020 election and was a symbol displayed by those who attacked the Capitol on January 6, 2021, an event that occurred only shortly before Justice Alito allowed the flags to be flown outside his residence. By displaying this flag, he showed support for domestic enemies of the United States, some of whom engaged in an insurrection at the U.S. Capitol building, in violation of his Constitutional Oath of office.”
What AOC avers was “widely understood” to be so seditious (an upside-down flag) is a common patriotic expression of distress hardly confined to a single event. AOC’s claims are further weakened by Justice Alito’s explanation that the flags were the First Amendment-protected displays of his wife.
Justice Thomas’ wife likewise offended AOC by expressing her political beliefs. Article III of the resolution against Clarence Thomas alleges a conflict with his wife’s “legal interests”: her expression of political views distasteful to AOC:
“Justice Thomas’s impartiality in the aforementioned proceedings might reasonably be questioned because Mrs. Thomas actively participated in contemporaneous political and legal efforts to overturn Mr. Trump’s defeat in the 2020 Presidential election. Indeed, Mrs. Thomas’s interest in the outcome of these proceedings thoroughly compromised Justice Thomas’s impartiality in any case challenging the results of the 2020 Presidential election or concerning the events of January 6, 2021.
“Mrs. Thomas advised the President to initiate and sustain political, legal, and extralegal attempts to overturn the results of the 2020 Presidential election (writing, ‘Do not concede’; ‘The majority knows Biden and the Left is attempting the greatest Heist of our History’; ‘save us from the left taking America down’).”
A Crisis in the Making
If US Supreme Court justices could be eliminated for “high crimes and misdemeanors” every time they – or their wives – expressed political views verboten by those in the legislative or executive branches, Marbury would be undone and the nation’s separation of powers along with it. This is precisely the radical, anti-democratic motive of AOC and her usual gang of co-sponsors, including Ilhan Omar (D-MN), Rashida Tlaib (D-MI), and Jamaal Bowman(D-NY). The resolutions’ endorsers include the far-left People’s Parity Project; Our Revolution (a Bernie Sanders spin-off); NextGen America; UltraViolet; and Take Back the Court.
AOC and the Democrats have launched a political assault on the Supreme Court to distract from the looming crisis in the White House. Unlike Thomas Jefferson in 1804, they lack a party majority in the House (necessary to pass the articles of impeachment to the Senate) and holds only a bare majority in the US Senate (where the resolutions would require a two-thirds vote for passage). The impeachment efforts are clearly dead on arrival. The Biden problem, however, remains.
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