Samuel Chase's 1805 Impeachment and Why Judges Are Not Removed for Their Rulings

The presiding officer of the Senate trial was a man under indictment for murder. That is not a line from a satire. It is the historical record. In February 1805, the Vice President of the United States, Aaron Burr, who had killed Alexander Hamilton in a duel the previous July and had been indicted for murder in New Jersey, sat in the chair of the Senate and presided over the impeachment trial of a justice of the Supreme Court. If you want to know why the Founders worried about passion in politics, start there.

The man on trial was Samuel Chase, a signer of the Declaration of Independence, a veteran of the revolutionary cause in Maryland and a justice since 1796. The charge, boiled down, was that he had been a partisan and a bully on the bench. The result was an acquittal, and the acquittal settled something the Constitution had left open: whether a judge may be removed from office because the majority dislikes his rulings. The answer, set in 1805, was no.

This is a history, so we tell it in order, with the people and the dates. Then we measure it against the Constitution and the Federalist, and draw the lesson for conservatives, who have good reasons to dislike many judges and good reasons to be careful about how we say so.

What the Constitution says

The impeachment power is in several places. Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article I, Section 2 gives the House "the sole Power of Impeachment," and Article I, Section 3 gives the Senate "the sole Power to try all Impeachments." It adds that no person shall be convicted "without the Concurrence of two thirds of the Members present." And Article III, Section 1 provides that federal judges "shall hold their Offices during good Behaviour."

Put these together. Judges serve during good behaviour. They may be removed by impeachment for treason, bribery or other high crimes and misdemeanors. Conviction needs two-thirds of the Senate. The text does not say what "high Crimes and Misdemeanors" means, and the meaning of that phrase, as applied to judges, was the whole question in 1805.

The background: a party war over the courts

To understand the Chase trial you have to understand the election of 1800, which Jefferson called a revolution. The Federalists lost the presidency and Congress. In their last weeks in power, they passed the Judiciary Act of 1801, created new federal judgeships and filled them with party loyalists, the "midnight judges." The Republican Congress repealed that Act in 1802. We look at the Court's role in that quarrel in Marshall Gave Up William Marbury's Commission to Win the Bigger Argument.

The Federalists still controlled the federal bench, and especially the Supreme Court. The Republicans were angry, and some of them concluded that impeachment could be used to bring the judges into line. In 1803 the House impeached Judge John Pickering of the federal district court in New Hampshire, a man who was by all accounts mentally unstable and, by many accounts, drunk on the bench; the articles against him charged drunkenness and unlawful rulings. The Senate convicted and removed him in March 1804. Pickering was a hard case, since he was not guilty of a crime in the ordinary sense, and Republicans treated his removal as proof that impeachment could reach a judge unfit for his duties.

Having removed one Federalist judge, the Republican leadership looked at the next: Justice Samuel Chase.

Samuel Chase

Chase was a man of large presence and a short temper. He was a Maryland lawyer and politician who had signed the Declaration of Independence, served in the Continental Congress, and been appointed to the Supreme Court by George Washington in 1796. He was a passionate Federalist. He could be hard on lawyers, on juries and on defendants, and he held his opinions loudly.

The House voted to impeach him in March 1804, and in December of that year adopted eight articles of impeachment. The leading manager for the House was John Randolph of Virginia, a brilliant and erratic Republican. The articles fell into three groups.

1. His conduct at the 1800 treason trial of John Fries. Fries, a Pennsylvania farmer, had led a tax protest, and Chase, riding circuit, was accused of deciding legal questions in advance and of restricting the defense lawyers from arguing points of law to the jury.
2. His conduct at the 1800 trial of James Callender in Richmond. Callender, a pamphleteer, was prosecuted under the Sedition Act for attacking President Adams. Chase was accused of improperly refusing to excuse a juror, refusing to admit a defense witness's testimony and treating the defense with bias.
3. His political harangue to a Baltimore grand jury in May 1803. Chase had used his charge to the grand jury to criticize the repeal of the Judiciary Act of 1801 and warned that the repeal threatened the security of property and liberty and would drag the republic toward what he called "mobocracy." It was, to put it politely, not a judicial statement.

A fourth, smaller article concerned his conduct before a grand jury in Delaware.

Read those charges with a modern eye and two things are clear. First, Chase had behaved badly. His handling of the Fries and Callender trials was harsh and partisan, and a judge ought to be neutral. Second, nothing in the articles was a crime in the ordinary sense. There was no bribe, no theft, no treason. The articles were about judgment, temperament and politics.

The trial

The Senate trial opened on February 4, 1805, in the Senate chamber, a public spectacle for a capital that had few. Vice President Burr presided, as the Senate's president, even as he faced a murder charge. Chase was defended by an extraordinary legal team led by Luther Martin, Maryland's attorney general and a veteran of the Constitutional Convention, with Robert Goodloe Harper and Joseph Hopkinson among others.

Randolph, for the House, carried much of the case, though he was ill by the time of his closing. The defense argued, with force, that no impeachable offense had been charged. Chase's counsel maintained that "high Crimes and Misdemeanors" meant indictable offenses and that a judge who made mistakes in law or conduct, however regrettable, had not committed a crime. They pointed out that the proper remedy for a wrong legal ruling was appeal, not removal.

The prosecution answered that impeachment was not limited to indictable crimes, and that a judge who abused his power could be removed for it. The argument had merit as a matter of English history, since the British Parliament had long used impeachment for misconduct by officers that was not strictly criminal. But the question was how far the idea could be stretched in a republic where judges held office during good behaviour.

John Marshall, the Chief Justice, was called as a witness and gave testimony that was favorable to Chase. Everyone in the room understood that if Chase fell, the pressure might shift to the Chief Justice himself.

The votes

The Senate voted on March 1, 1805. It had thirty-four members, of whom twenty-five were Republicans, a margin that made the Republican leaders confident and that, as it turned out, they could not hold. Conviction required two-thirds of those present, which with thirty-four members meant twenty-three votes. The Republicans had far more than that on paper.

They did not hold together. On article after article, some Republican senators voted to acquit. On several articles, a majority voted to convict, but none reached two-thirds. The closest was the eighth article, the one about the Baltimore grand jury charge, where nineteen senators voted to convict and fifteen to acquit. Nineteen votes was four short of the twenty-three needed. Chase was acquitted on every article, and he stayed on the Court until his death in 1811.

Think about what happened. A party with a commanding majority in the Senate, a hostile President and a motive to remake the Court could not remove a justice whose conduct was, to be blunt, bad. Enough senators of the majority party decided that what Chase had done, though improper, did not meet the standard for removal. That was the decision of the people's representatives, and it defined the principle.

What the acquittal settled

The Chase trial established a norm that has held, with rare exceptions, for more than two centuries: a judge is not removed from office because his decisions are unpopular, or even because a majority thinks they are wrong. Judges have been removed since then, but for misconduct of a personal kind: bribery, perjury, tax evasion and similar offenses. The grounds have been corruption and abuse of office, not disagreement with a ruling.

Notice how much hung on a handful of Republican votes. The acquittal did not rest on a statute or a court decision. It rested on the judgment of senators who looked at the argument and chose restraint. Some of them disliked Chase intensely. They declined to set a precedent that would turn every unpopular ruling into grounds for removal. It is one of the finest moments in the history of the Senate, and it deserves to be taught.

The Federalist on impeaching judges

The Federalist Papers had anticipated the question. In Federalist 79, Hamilton wrote about judges' independence and addressed how they might be held accountable. The fixed provision for their support, he argued, was necessary to secure their independence, since in the general course of human nature a power over a man's subsistence amounts to a power over his will. As to responsibility, he wrote that the precautions are found in the article respecting impeachments: judges are liable to be impeached for malconduct by the House and tried by the Senate, and if convicted, may be dismissed from office and disqualified from holding any other. This, he wrote, is the only provision on the point consistent with the necessary independence of the judicial character.

The word is "malconduct," not "wrong decisions." Hamilton went further in Federalist 81, where he took up the fear that the judiciary would encroach on the legislature and pointed to the power of impeachment as a sufficient security against it. The idea was that judges are accountable for how they behave, and that error in judgment is corrected by appeal and by statute, not by removal.

This is also why the Constitution protects judges' salaries. Article III, Section 1 says their compensation "shall not be diminished during their Continuance in Office." A legislature that could cut a judge's pay when it disliked his rulings would have the power Hamilton warned about.

The strongest objection, answered

Here is the best argument on the other side, as a thoughtful critic would state it. "The Constitution says judges serve during good behaviour. Surely a judge who systematically abuses his power, who legislates from the bench or tramples the plain meaning of the text, is not behaving well. 'High crimes and misdemeanors' has never been limited to indictable offenses. If the people cannot remove a judge who ignores the Constitution, then what check is there at all?"

It is a good objection, and conservatives have made it. Five answers follow.

One. "Wrong" is a matter of dispute, and that is the problem. The judge you think is wrong is the judge someone else thinks is right. A standard that allows removal for rulings the majority dislikes allows removal for rulings the majority gets wrong, and majorities have been wrong about the Constitution many times. Dred Scott was the work of a Court that a good part of the country at the time thought was right.

Two. Impeachment is a poor tool for disagreement and a good tool for misconduct. It is a political process with a high bar. The two-thirds requirement in the Senate was meant to prevent partisan removal, and the Chase trial shows it working.

Three. There are other checks. Reversal on appeal corrects an individual mistake. A statute can overrule a judge's reading of a law. A constitutional amendment can overrule his reading of the Constitution. The Senate's confirmation power guards the front door, and Congress's authority over jurisdiction, discussed in The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses, reaches the structure of the courts. And the people may respond over time by electing Presidents and senators who will appoint better judges.

Four. A judge who wants to be removed for misbehaviour can be. Federal judges have been impeached and removed for bribery, perjury and similar offenses, and the process works for real wrongdoing. The principle is not immunity. It is that the cause must be conduct.

Five. The alternative would politicize every opinion. If judges could be removed for rulings, every decision on a divisive question would invite a campaign to impeach. Judges would learn to rule as their likely removers prefer. That would destroy the thing that makes judicial review valuable, which is that a judge applies the law, as Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right? describes, without fear of the mob.

The lesson for conservatives

Conservatives have grown used to frustration with judges, and for good reason. We have seen courts invent rights and rewrite statutes, and we have said so loudly. The Chase story advises us on how to channel that frustration.

First, win the long game through appointments. The best answer to a bad judge is a good judge. Elections have consequences because the President nominates and the Senate confirms, as Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means explains. The patient work of the past half century, which put judges who read the text as written on the courts, was done through that process, not through impeachment.

Second, respect the principle even when it protects someone you dislike. Republicans in 1805 wanted Chase gone. Enough of them chose the principle. A movement that wants judges removed for rulings it opposes will find, in time, that its opponents want judges removed for rulings it favors.

Third, know the difference between a judge who is wrong and a judge who is corrupt. A conservative should say plainly that a judge misread the Constitution when he did, and argue the point in public, in the briefs, in the law reviews and in the Senate. He should reserve impeachment for the cases where a judge has broken the law or betrayed his office.

Fourth, read the primary sources. The text of Article II, Section 4, of Federalist 79 and of the Senate's votes in 1805 is available to anyone. The argument over what "high Crimes and Misdemeanors" means is not hidden. It is waiting for citizens who will read it.

The case in brief

1. The Constitution allows impeachment of judges for treason, bribery and other high crimes and misdemeanors, requires a two-thirds vote in the Senate, and gives judges tenure during good behaviour.
2. In 1805 the Senate tried Justice Samuel Chase, impeached by a Republican House for partisan conduct on the bench, with Aaron Burr presiding.
3. Despite a large Republican majority, no article reached two-thirds, and the closest, the eighth, fell four votes short at nineteen to fifteen.
4. The acquittal set the rule that judges are removed for misconduct, not for rulings, which Federalist 79 and 81 supports.
5. The remedy for a wrong ruling is appeal, statute, amendment, appointments and the ballot, not removal.

What you can do: read Article II, Section 4 and Federalist 79 this week, then write down in one paragraph the difference between a judge who is wrong and a judge who should be removed.