//  4/24/19  //  In-Depth Analysis

This is an excerpt from our book, To End A Presidency: The Power of Impeachment.  Here, we explain why the Framers expressly decided against allowing the Supreme Court to play a role in adjudicating impeachments.

Although the Framers celebrated the House as a bastion of democracy, they didn’t give it sole control of impeachment. Writing for a public audience, Hamilton explained this decision by reference to general principles of fair adjudication. Behind closed doors in Philadelphia, however, there was a far more profound reason why the Framers constrained the House. 

Simply put, many of the Framers feared too much democracy. They worried that “factious spirits” and “democratic licentiousness” could doom the young nation.22 As Professor Klarman explains, this “deep distrust” affected “nearly every substantive choice made in the Constitution that bore on the new federal government’s susceptibility to popular influence.” The Framers sought to ensure that elite Americans—educated, wealthy, virtuous, and dignified—would play a significant role in administering the country. That was particularly important for the great powers of the Constitution, such as impeachment. An ugly or ignorant mood could easily sweep the populace, agitating representatives into an unjustified assault on the executive branch. Convinced that the House would uncontrollably boil over with irrational fury, the Framers generally agreed that it couldn’t have the final say on ending presidencies. 

In practice, this meant establishing a court of impeachment in which the House would prove its case. By vesting control in a more deliberative and insulated body—one less prone to splashes of democratic excess—the Framers aimed to temper popular passions. 

Describing the second stage of impeachment as a trial furthered this goal by evoking Americans’ historic obsession with the forms and fixtures of legal process. The president would not be expelled from office after a few hasty votes. No, the president would literally be placed on trial for his “high Crimes and Misdemeanors.”

And who better to preside over a trial than judges? To quite a few Framers, it was self-evident that the Supreme Court should decide cases of impeachment. The justices would be elite, independent, and divorced from the daily drama of politics. Further, assigning this role to the Court would address lingering concerns that the Senate was already too powerful.

Although the Framers didn’t take that path, plenty of other countries have done so. Impeachments are tried before the judiciary in about forty nations worldwide, including Burkina Faso, Cape Verde, Djibouti, France, Mali, South Korea, and Venezuela. In fact, three US states also involve their courts. New York tries impeachments before a body composed of its senate and high court, or “the major part of them.” Missouri uses a special commission of seven “eminent jurists” selected for that purpose by its senate. And Nebraska uses seven district court judges chosen by the chief justice of the Nebraska Supreme Court.

A majority of the Framers, however, voted against relying on the judiciary. There were four major reasons for that decision. Together, those rationales illuminate how some Framers hoped the impeachment power would operate in practice.

One of the most significant objections to trying impeachments before the Supreme Court was that the president might have appointed one or more of the justices. George Mason and Roger Sherman both raised this concern. At bottom, they worried about independence: the entity charged with trying the president should not be populated by his appointees and thereby subject to his influence. In that circumstance, an appearance (and reality) of bias could undermine the whole process—especially if the president had nominated allies who shared his corrupt or abusive views. 

A version of this issue arose in 1974. With Watergate hearings in full swing and the nation paying close attention, the Court had to decide whether Richard Nixon should be ordered to surrender his tapes. At the time, Nixon had appointed four members of the Court: Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Of that group, only Rehnquist recused himself, because he had worked closely with key players in Watergate. The final vote in United States v. Nixon was eight to zero—and rightly so. But surely the public outcry would have been furious if the Court had ruled in the president’s favor, with Nixon’s appointees casting the decisive votes. And if that sounds bad, imagine the public reaction if Nixon’s appointees had been in a position to control his actual impeachment rather than a case about access to evidence. Many of us would view that situation as intolerable and potentially illegitimate. 

Next consider a variation on the same Watergate theme: What if Nixon had been removed from office, Gerald Ford had refused to pardon him, and Nixon was then convicted of federal crimes? This hypothetical exemplifies a second reason for the Framers’ skepticism of the Court: it might later sit in judgment of the president in an appeal arising from the conduct that got him impeached. Given the possibility of an impeachment followed by criminal charges, it would be incongruous and unfair for the same tribunal to have the final word in both proceedings.

A third objection to the Court involved its size. The Constitution does not say how many justices must sit on the Court, but the Framers expected a small number. Their expectations proved well founded. The Court’s membership started at six and has topped nine only once, from 1863 to 1866. The Court’s size raised concerns at the Constitutional Convention that it would be too easy to manipulate so few people. As Gouverneur Morris warned, “the Supreme Court were too few in number and might be warped or corrupted.” Hamilton later made a similar point in Federalist No. 65: “The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.” In contrast, Hamilton reasoned, it would be far more difficult for anyone to corrupt a larger body of decision makers.

Finally, some Framers doubted that the fledging federal courts were up for the task. As Hamilton famously remarked in Federalist No. 78, the judiciary was the “least dangerous” branch. Lacking the sword or the purse, it possessed “merely judgment.” He couldn’t but wonder: Did the Court have sufficient fortitude to decide impeachments under crushing political pressure? And if unelected judges did manage to reach a verdict, could they reconcile the public to their final decision—especially if they had rejected charges brought by the House on behalf of all Americans?

Morris gave similar concerns a different spin. If vested with a role in impeachments, he warned, the Court would inevitably be “drawn into intrigues with the Legislature and an impartial trial would be frustrated.” In his view, the judiciary couldn’t resist creeping politicization and secret conspiracies if thrust into a high-stakes political process. 

Pulling these objections together, we can develop a sharper sense of what the Framers sought in an impeachment tribunal: (1) independence from the president in its selection process; (2) no other role in judging the president’s misdeeds; (3) enough members to resist corruption; and (4) the legitimacy, competence, and courage to adjudicate disputes between the House of Representatives and the president of the United States.

With the Supreme Court disqualified, this left only one viable option in the federal government: the Senate.

Versus Trump: Can Trump Steal The Election?

10/6/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss whether Trump can really "steal" the election, as some have started to worry about. They discuss Jason's piece here on the topic. Plus, they say goodbye to Justice Ginsburg. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Can We — And The Press — Maybe Take A Breath On The Whole Stolen Election Thing?

9/25/20  //  Commentary

It seems like a stolen election is all anyone can talk about these days. But it's very unlikely.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Trump Versus Mail Voting

8/24/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss voting by mail in the pandemic. Have courts allowed the rules to be changed, either in responses to suits there should be more voting by mail—or less? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP