Ocasio-Cortez’s Impeachment Case Will Fail — Here’s Why It Still Matters
As the dust settles on a hugely impactful term from the U.S. Supreme Court, some progressive lawmakers in Congress are pursuing an effort to remove conservative Justices Samuel Alito and Clarence Thomas from the bench.
Last week, New York Rep. Alexandria Ocasio-Cortez (D) introduced articles of impeachment against Thomas and Alito after recent scandals raised ethical concerns about their conduct. While legal experts say the effort is virtually impossible to succeed in Congress — only one U.S. Supreme Court justice has been impeached in the nation’s history — the case highlights mounting concerns that the Court has little accountability.
“This is not going to happen,” said Jeremy Paul, a professor and former dean of the Northeastern University School of Law, adding that the case is “more of an effort to draw attention to what Congresswoman Ocasio-Cortez [believes] is conduct that [crosses] the line.”
In Thomas’s case, the conduct in question involves lavish offerings from billionaire GOP donor Harlan Crow, revealed last year in a ProPublica investigation. Throughout Thomas’s tenure, the news outlet reported he failed to disclose gifts and perks including luxury vacations and trips on Crow’s yacht and private jet.
Cortez’s resolution among other things accuses Thomas of failing to disclose financial income, gifts and reimbursements and other information. Democracy Docket reached out to Ocasio-Cortez’s office for comment, along with a spokesperson for the U.S. Supreme Court.
The progressive lawmaker’s resolution against Alito stems from the flag-flying controversy in which Alito’s wife flew two right-wing flags at their Virginia and New Jersey homes, according to the New York Times and Alito.
Amid the controversy, Alito rejected calls to recuse himself from two cases involving Jan. 6 and former President Donald Trump’s immunity. On July 1, he joined the majority opinion ruling that Trump is entitled to presumptive immunity from criminal prosecution for official acts as president. The resolution cites Alito’s refusal to recuse despite the appearance of bias.
“The question I think she’s trying to raise is — has the conduct of Justice Alito and Justice Thomas gone past partisan disagreement to actual violations of statutes or norms,” Paul said.
Alternatives to Impeachment
Gabe Roth, executive director of the nonprofit Fix the Court, an organization seeking to bring reform to the high Court, said the group does not support the impeachment effort and is instead in favor of more practical reforms.
“We’d rather focus on proposals that (a) have a chance of success and (b) have a history of bipartisan support, like a judicial gift ban, a judiciary inspector general, and an end to nationwide injunctions,” Roth said in an emailed statement.
Impeaching one justice alone is a tall order, much less two Republican-appointed justices in a sharply divided Congress and a Republican-led House. In order to move forward, Ocasio-Cortez’s resolutions would need to clear the House Judiciary Committee currently chaired by Republican Rep. Jim Jordan, a Trump ally who’s leading his own impeachment effort against Biden.
Then it would need to garner enough support in the full House to pass, and enough support in the Senate, where Democrats have a razor-thin majority, for the justices to be convicted. Trump, for example, was impeached in the House twice but was not convicted in the Senate.
University of Missouri law professor Frank Bowman told Time that impeachment — which happens through Congress — is essentially the only way to remove a federal judge. “Judges, under the federal system, are appointed during good behavior, effectively for life,” he said, “and therefore it’s really the only mechanism for getting rid of a bad judge.”
Ocasio-Cortez is also up against centuries-old precedent. The only U.S. Supreme Court justice to be impeached in the nation’s history is Justice Samuel Chase in 1804. In that case, Chase was convicted by the House but acquitted in the Senate, according to the U.S. government.
Paul said the timing of Ocasio-Cortez’s case, namely that she filed a week after the immunity ruling, could create the appearance of partisanship, even though Ocasio-Cortez isn’t citing the immunity ruling as the direct reason for the charges.
But it wouldn’t be the first time impeachment was used politically. And in an increasingly polarized environment, Paul said, it would be incredibly difficult for Ocasio-Cortez to mount a bipartisan effort against Thomas and Alito.
“It’d be very tough to get an impeachment conviction,” he said. “And the framers wanted it that way. Nobody wants impeachment to be used for partisan purposes.”