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Michael Feldberg and Bruce Laurie: Impeach a Supreme Court justice? The lessons of history

U.S. IMPEACH WARREN SIGN

A road sign in Dacautur, Ill., demands the impeachment of U.S. Chief Justice Earl Warren in June 1963. "If history tells us anything, the current online campaign to impeach the anti-Roe justices is as likely to fail as the politically motivated efforts to remove Samuel Chase or Earl Warren," write Michael Feldberg and Bruce Laurie.

You’ve likely heard some calls for Congress to impeach Clarence Thomas for his wife’s embroilment in the events of Jan. 6, 2021, and Brett Kavanaugh and Amy Coney Bryant for lying to Congress under oath about their commitment to Roe v. Wade as established precedent.

Such calls remind us of the 1960s billboards to impeach Earl Warren, chief justice of the Supreme Court. The calls to impeach Warren then and the three justices today are bookends to the story of the Supreme Court’s evolution over the past six decades.

In 1953, President Dwight Eisenhower appointed Warren, the Republican former governor of California, to serve as Chief Justice of the United States Supreme Court. Like Eisenhower, Warren was widely considered a moderate conservative who believed in social progress through the rule of law. If change was to come about, Warren famously wrote, it should proceed “with all deliberate speed.” Despite his reputation for moderation, under Warren’s 15-year leadership of the Supreme Court overturned decades — if not centuries — of legal precedents, remaking America’s legal arrangements regarding race, criminal procedure, religious freedom and sexual privacy.

The best-remembered Warren court ruling is Brown v. Board of Education, abolishing seven decades of constitutionally sanctioned racial segregation in Southern public schools, transportation and accommodations. Brown v. Board strengthened the grassroots civil rights movement that reached its peak in the 1960s. It also turned many white Southerners and conservatives everywhere against the federal government.

The Warren court also expanded the idea of individual rights in the criminal justice system, constraining the arbitrary power of police and prosecutors and expanding defendants’ procedural protections. Gideon v. Wainwright granted every accused the right to representation by competent counsel. Mapp v. Ohio declared evidence illegally gathered by police inadmissible at trial. And the well-known Miranda v. Arizona decision compelled police to alert suspects of their right to remain silent and have an attorney present when they were interrogated — effectively banning the “third degree.” Since these rulings, conservative Republicans have made political hay by accusing liberals of being “soft on crime,” conveniently forgetting that these rights were enunciated by a Republican-led Supreme Court.

No less sweeping were the Warren court’s religious freedom rulings upholding the First Amendment’s assertion that “Congress shall make no law pertaining to an establishment of religion.” In Engel v. Vitale (1962), the justices banned compulsory sectarian prayer to the Judeo-Christian version of God in public schools, finding it inherently coercive for students from non-Christian and polytheistic religious faiths as well as atheists. A year later, in Abington School District v. Schempp, the court blocked compulsory Bible reading in public schools. By contrast, the Roberts court’s Kennedy decision permitting a public high school football coach to lead his players in “voluntary” sectarian prayer and its ruling that the state of Maine must pay the tuition of students enrolled in religious schools boldly reversed six decades of Warren court precedents, not to mention more than two centuries of generally accepted constitutional values.

Perhaps the Warren court’s most dramatic preference for individual conscience over government-imposed religious conformity was Griswold v. Connecticut (1965). The ruling prohibited the heavily Catholic state of Connecticut from banning the sale of birth control pills and condoms, establishing the principle that government should “keep out of people’s bedrooms.” It was a short journey from Griswold declaring personal and particularly sexual privacy as a constitutional right to Roe v Wade, which established a woman’s right to control her own pregnancy, and then to the overturning of state laws criminalizing homosexual acts. Legalization of gay marriage and child adoption are Griswold’s most recent offspring. In voting to overturn Roe, Justice Thomas has implied that, like the right to abortion, the precedents establishing the right to acquire birth control and marry whom you love may be overturned.

The Warren court has gone down in history as one of the greatest in American legal history. Despite the resistance to some of its rulings by a disaffected minority, decisions such as Brown and Miranda were popular then and remain so today. By contrast, a wide range of public opinion polls indicate that the majority of Americans do not agree with the decision to overturn Roe or the possibility of reversing gay rights. The billboards calling for Earl Warren’s impeachment were sponsored by the far-right John Birch Society, a strongly anti-communist, conservative organization. The Birchers demanded that the U.S. leave the United Nations; considered the fluoridation of drinking water and the civil rights movement part of a communist conspiracy; and flirted with antisemitism.

Only once in the nation’s history has a Supreme Court justice been impeached. In 1805, the Jeffersonian-Republican dominated House charged Federalist Justice Samuel Chase with impeachable offenses, but the Senate failed to convict him. If history tells us anything, the current online campaign to impeach the anti-Roe justices is as likely to fail as the politically motivated efforts to remove Samuel Chase or Earl Warren.

But there is another course. Presidents and vice presidents must stand for reelection every four years and are limited to serving two terms. Members of Congress must earn reelection every two years, and senators every six. By contrast, the Constitution states that justices “shall hold their Offices during good Behaviour,” allowing them to stay on the bench as long as they wish, until they die or are impeached. A bipartisan proposal is floating around Washington to limit a Supreme Court justice’s term to 18 years, meaning that at least one justice would rotate off the court every two years. This would guarantee that every sitting president and Senate would get to appoint and confirm a justice, which would presumably alter (for better or worse in the eye of each beholder) the court’s membership and perspectives.

We’d like to believe that Earl Warren would agree with the proposal. It would allow the court to better keep pace with the developments in American culture and values “with all deliberate speed.”

Michael Feldberg, of Pittsfield, is executive director of the George Washington Institute for Religious Freedom. Bruce Laurie, of Pelham, is professor emeritus of history at University of Massachusetts Amherst.

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