128. Impeaching Federal Judges

Congress has used its power to impeach and remove federal judges only sparingly. Calls from Elon Musk and Republican lawmakers to impeach judges who rule against Trump are powerful reminders of why.

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Even before Saturday’s New York Times story on the subject, I wanted to write about the mounting calls from Elon Musk and several Republican members of Congress to impeach any federal judge with the temerity to rule against the Trump administration—including the introduction of formal impeachment resolutions against three district judges, Amir Ali and John Bates in D.D.C. (Bates?!?); and Paul Engelmayer in S.D.N.Y. On one hand, these resolutions aren’t going anywhere. The House of Representatives isn’t about to start impeaching federal judges for the “high crime or misdemeanor” of issuing rulings with which it disagrees; and even if it does, there’s a better chance of me replacing Gary Cohen as the Mets’ TV play-by-play announcer than of 67 Senators voting to convict any judge who is so impeached.

On the other hand, there’s something deeply ominous about influential public figures moving the Overton window on the remedies for (allegedly) erroneous judicial decisions—and instinctively hurling terms like “corrupt” at judges who issue rulings that they just think are wrong.¹ Don’t take my word for it, though; Chief Justice Roberts made this precise point in his 2024 Year-End Report on the Federal Judiciary. In his words:

Attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed. Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.

When the year-end report came out, I was rather critical of its lack of nuance in distinguishing between legitimate substantive criticisms of judicial rulings (and behavior), on the one hand, and more problematic personal attacks. Calling for impeachment, I suggested, isn’t necessarily out of bounds—so long as it’s based on credible allegations of the kind of behavior that ought to be impeachable. But what’s happening in the right-wing media ecosystem is a good example of why, on the wrong side of that line, the Chief Justice is entirely right—and why it’s probably a good thing that, historically, Congress has been reluctant to impeach federal judges for even the most profound substantive disagreements. Some have suggested that Congress has been too unwilling, historically, to impeach federal judges. But my own view, as explained below the fold, is that Musk’s intemperance provides powerful support for the proposition that Congress’s reticence has, in the main, been a very good thing.

But first, the news.

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On the Docket

Perhaps the most important thing the Supreme Court did last week is not rule on the Trump administration’s emergency application in the two foreign aid spending cases—about which I wrote quite a bit on Thursday. As I noted then, Chief Justice Roberts had issued an “administrative stay” of Judge Ali’s order (which ordered the government to release between $1.5 and $2 billion in already obligated federal funds) late Wednesday night, and had ordered the plaintiffs to respond to the government’s application by noon Friday. That suggested at least some view that the full Court might rule by the end of the day Friday. Well, it’s Monday morning, and still no word. I suspect we’ll know more today (and certainly early this week). But the longer this takes, the more the delay itself is benefiting the government (and harming the plaintiffs), even if the end result is a ruling that allows all, or even some, of Judge Ali’s order to go into effect.

The Court also handed down four signed decisions in argued cases last week—bringing the total number of merits decisions to 13 (10 signed rulings; the unsigned TikTok decision; and two “DIGs”—dismissing cases that were “improvidently granted”). We expect more decisions both Tuesday and Wednesday this week. One of the big stories at this point in the Court’s term a year ago was how far behind the justices were; for a host of reasons, that doesn’t seem to be an issue this term.

In brief, the four rulings were:

1. Glossip v. Oklahoma: By far the most significant of the four, in Glossip, a 5-3 majority ordered a new trial for Oklahoma death-row inmate Richard Glossip. In a majority opinion by Justice Sotomayor (which was joined by Chief Justice Roberts and Justices Kagan, Kavanaugh, and Jackson),² the Court held that the prosecution had shirked its constitutional obligation to correct false testimony at Glossip’s trial—and that the error warranted a new trial. Justice Barrett agreed with the majority that there had been error, but would have let the Oklahoma Court of Criminal Appeals decide, in the first instance, if the error warranted a new trial. Justice Thomas, joined by Justice Alito, dissented—arguing that the Court lacked jurisdiction to even hear Glossip’s appeal; and that he wasn’t entitled to relief on the merits in any event. (Justice Gorsuch was recused, presumably because he had been on the Tenth Circuit during prior appeals in Glossip’s case).

2. Lackey v. Stinnie: For a 7-2 majority, Chief Justice Roberts held that, when a plaintiff obtains a preliminary injunction against local or state government action under 42 U.S.C. § 1983, and the government defendant moots the case before it can reach a more permanent judgment, the plaintiff is not a “prevailing party” for purposes of recovering attorneys’ fees under 42 U.S.C. § 1988. I’ll confess to being more partial to Justice Jackson’s dissent (which Justice Sotomayor joined); it seems like a preliminary injunction that prompts the government to cease the complained-of activity is the very kind of “victory” that Congress meant to incentivize when it authorized fees in § 1988. But what do I know?

3. Dewberry Group, Inc. v. Dewberry Engineers Inc.: For a unanimous Court, Justice Kagan held that, in a trademark infringement suit, the “defendant’s profits” (which successful plaintiffs are entitled to recover) do not include profits made by affiliates or other entities related to the defendant who were not defendants themselves.

4. Waetzig v. Halliburton Energy Servs., Inc.: In a case that only Civil Procedure scholars could love, Justice Alito held, for a unanimous Court, that when parties agree to “voluntarily” dismiss a civil suit under Rule 41(b) of the Federal Rules of Civil Procedure, that dismissal counts as a “final proceeding” (that can then be “reopened”) under Rule 60(b) of the Federal Rules of Civil Procedure. (I told you Glossip was the most significant of the four.)

There were also a whole bunch of six separate writings respecting denials of certiorari in last Monday’s regular Order List. I’m not going to recount them all here, but if you’re curious, you can always check out the “Opinions Relating to Orders” page on the Court’s website.

As noted above, we expect more rulings in argued cases from the Court both tomorrow and Wednesday starting at 10 ET. We expect a full, regular Order List at 9:30 this morning. I, at least, expect some movement on the foreign aid funding cases—perhaps as early as later today. And the Dellinger case might also make it back to the justices sooner rather than later.³ Meanwhile, the Court is also in the middle of its “February” argument session—with four arguments on tap over the next three days.

It’s going to be a busy week.

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The One First “Long Read”:
Why Judicial Impeachments Have Been Rare

One of the very first issues of this newsletter was about what remains, to date, the only impeachment of a Supreme Court justice—Congress’s 1804-05 effort to remove Justice Samuel (“Old Bacon Face”) Chase. As I noted there, although the Federalist Chase was easily impeached by the Democratic-Republican-controlled House (effectively for behaving like a staunch partisan on the bench), six Democratic-Republicans broke ranks in the Senate, leading to Chase’s acquittal—and setting an important precedent for judicial independence.

Perhaps thanks to the Chase precedent, impeachments of lower federal court judges have also been relatively rare. Counting Chase, 15 federal judges have been impeached—and only eight of them have been convicted (another three resigned before the impeachment proceedings could be concluded). And as you’ll see from the chart below, none of the cases, at least other than Chase’s, sought to use the substance of the judge’s rulings as the basis for their impeachment. Instead, federal judges have been impeached for (1) criminal or flagrantly unethical conduct; (2) rampant abuse of their contempt powers; (3) intoxication or other incapacity on the bench; and (4) my personal favorite—taking up arms for the Confederacy during the Civil War (and not resigning their U.S. commission!):⁴

Of course, there are plenty of examples of judges behaving badly who nevertheless weren’t impeached—including some who resigned before the House could even begin impeachment proceedings. And there’s at least some sentiment out there that Congress has been too reluctant, historically, to use the impeachment power as a cudgel against misbehaving judges. I certainly understand that argument, especially given the galling weakness of other accountability mechanisms for federal judges, e.g., those who abuse their law clerks or other court staff. But the tradition of not impeaching judges for problematic rulings is one that I find much easier to defend—for at least three reasons.

First, when judges hand down erroneous rulings, even those based upon assertions of jurisdiction that may be incorrect, there tends to be a remedy within the legal system for those rulings—the remedy of appeal (and, where no appeal is available, extraordinary relief via mandamus). Indeed, the availability of appellate review has been part of the justification the Supreme Court has provided for the doctrine of judicial immunity—the idea that judges can’t be sued for damages for conduct undertaken as part of their judicial function. My own view, much like an excellent Harvard Law Review note from two years ago, is that the judicial immunity doctrine sweeps too broadly—but its core idea strikes me as undeniable: the proper remedy for a case in which a lower-court judge errs, even unforgivably, is to reverse them. (Supreme Court justices, of course, present something of a different issue—but the focus thus far has been on lower-court judges.)

Second, when judges hand down rulings that courts uphold, but that a sufficient majority of the public believes to be wrong, then those have remedies, too—the ability of Congress to overrule judicial interpretations of any text short of the Constitution. If, for example, there’s widespread support for the proposition that the President should have the power to unilaterally decline to spend money Congress has appropriated and obligated, Congress could expand the Impoundment Control Act of 1974. If the government is acting in a way that’s unlawful but that has mass public support, the answer is not for courts to twist the law into a pretzel to rationalize the government’s conduct; it’s for the public to use its power to change the law.

Third, in a world in which there was more of a tradition of impeaching judges for rulings that a sufficient majority of the populace find egregious, that tradition would pose a serious threat to judicial independence. This may sound odd coming from someone who has written so much about the importance of (and need for greater) judicial accountability, but Professor Paul Freund put it best: “Judges are not, [or] at any rate should not be, influenced by the weather of the day. But they are necessarily influenced by the climate of the age.” We want a system in which the courts as a whole are accountable, but judges in individual cases are insulated. Aggressive impeachment would radically upset that balance.

Against that backdrop, the current noise being made by Musk and his fellow travelers, and the resolutions introduced against three district judges, is more than just distasteful; it’s the exact threat against which Chief Justice Roberts railed last December. Indeed, for all of the complaints about rulings by Judge Aileen Cannon or Judge Matthew Kacsmaryk (to take just two Trump appointees who were especially … visible … during the Biden administration), you won’t find any impeachment resolutions introduced against them by Democratic members of the House. The only two such resolutions in recent years were resolutions to impeach Justices Thomas and Alito introduced by Rep. Ocasio-Cortez. Whatever else might be said about those resolutions, the “high crimes and misdemeanors” they identified had nothing to do with the substance of Thomas’s and Alito’s rulings.

As noted above, the concern is not that these resolutions will get legs and that these judges will face a meaningful specter of being removed from the bench. Rather, the concern is that this rhetoric will inflame public opinion, increase the threats to the physical safety of these (and other) judges; and delegitimize courts at the exact moment when they are serving as the very bulwark against tyrannies of the majority that the Founders intended them to be. Not so long ago, I was the subject of a sustained, personal attack by a sitting circuit judge who claimed (without any evidence) that my substantive criticisms had led to death threats against one of her colleagues. It seems like that kind of critique is far more properly directed at folks who simply assert without any foundation (or substantiation) that judges who hand down rulings they don’t like are “corrupt,” and should be impeached (or, as some have suggested, tried for seditious conspiracy) for having the temerity to block executive branch initiatives.

Yes, those folks are telling on themselves—both for how little they care about the rule of law and how deeply they view the courts as simply a font for (or obstacle to) the exercise of partisan political power. But we ought to be pushing back not just by showing how much they’re hypocrites, but by explaining both that our tradition has been to not impeach judges just because we disagree with them, and why that’s been so. Indeed, it’s a pretty significant way of ensuring that ours is “a government of laws and not of men,” not the other way around.

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SCOTUS Trivia: The Other Nixon Impeachment Case

With federal judicial impeachments as the focus of today’s newsletter, I thought I’d take a beat to flag a Supreme Court ruling I really enjoy teaching (at least pedagogically): a case about impeachment captioned, I kid you not, Nixon v. United States.

The petitioner in Nixon was Judge Walter Nixon, No. 13 in the above chart. After the House impeached him and the Senate convicted and removed him, Nixon brought a lawsuit, claiming that the procedure the Senate had followed in trying his case violated both his individual constitutional rights and Article I’s Impeachment Trial Clause (the Senate had basically tried Nixon in committee, with the full body voting based upon the committee’s recommendation).

The Supreme Court unanimously ruled against Nixon, but it produced three very different rationales as to why. Chief Justice Rehnquist’s majority opinion for six justices invoked the “political question” doctrine, and concluded that, because the Constitution commits the question of impeachment to the House and Senate, it necessarily excludes the courts from playing a role in reviewing those proceedings. Thus, what actually happened in the Senate was immaterial; so long as the Senate complied with the Constitution’s few specific requirements for impeachment trials, there was nothing for courts to review.

Justice White wrote separately, joined by Justice Blackmun, to argue that Nixon should lose not because his claims were categorically beyond the courts’ power to review, but because the Senate was entitled to broad deference in how it conducted Nixon’s impeachment trial—and it had not exceeded those limits in Nixon’s case. For White, the Constitution didn’t commit the matter exclusively to the legislature, but it did put a thumb on the scale in its favor.

And then there’s Justice Souter—who tried, perhaps not altogether successfully, to split the difference between Rehnquist and White. In Souter’s view, Nixon’s claim should be beyond judicial cognizance unless the Senate had grossly exceeded its discretion—in which case, courts should be able to intervene. How courts would know whether the Senate had grossly exceeded its discretion without stepping in, Souter didn’t say.

Between them,⁵ the opinions in Nixon tend to provoke a really healthy debate in my Federal Courts classes about what the political question doctrine is, and isn’t. And I’ll just add, on a personal note, that although I spent much of the early part of my career being more sympathetic to White, I’ve come around a bit, especially in light of recent developments, to Rehnquist’s view—which may be as much a pragmatic result designed to insulate the courts from being dragged into future political crises as it was a correct reading of the Constitution's text. Either way, though, we have Nixon to thank for the paucity of case law surrounding impeachment proceedings. And I’m increasingly persuaded that that’s a good thing.

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1. There’s also the rank hypocrisy of complaining about behavior by litigants and district judges that pales in comparison to much of what we saw during the Biden administration. But shamelessness seems to be a feature for folks who are making these arguments, not a bug.

2. It is striking that Chief Justice Roberts assigned the majority opinion to Justice Sotomayor in such a closely divided case. Last term, in contrast, the only majority opinion Justice Sotomayor wrote in a divided case, for a 5-1-3 majority in Wilkinson v. Garland, was one she assigned to herself.

3. On Saturday night, Judge Amy Berman Jackson entered a permanent injunction blocking President Trump’s putative removal of Dellinger, which the government has already appealed to the D.C. Circuit. The Court is still holding “in abeyance” the Trump administration application to vacate Judge Jackson’s initial temporary restraining order. But that application is now moot (there’s no TRO left to vacate); the question is whether the government will also ask the Court to issue a stay pending appeal of Judge Jackson’s permanent injunction (if the D.C. Circuit doesn’t, anyway). This time around, at least, no one disputes that the government gets to appeal Judge Jackson’s ruling—so there’s one less complication.

4. One hyper-pedantic note about the chart: At the time of his impeachment and removal, Judge Humphreys held a single federal office as a district judge for the Eastern, Middle, and Western Districts of Tennessee. I’ve listed E.D. Tenn. here for convenience only.

5. I usually skip over Justice Stevens’s brief concurrence—not because its paean to judicial restraint isn’t worthwhile, but because it endorses the majority opinion in full.