Can you impeach a member of the Supreme Court? Because like AOC, we have a couple of nominations

Lately, Justices Clarence Thomas and Samuel Alito have garnered more headlines than a Hollywood scandal.

The issues at hand are serious, involving undisclosed travel, lodging benefits, and political symbols that raise questions about impartiality and ethics at the highest level of the U.S. judiciary. Justice Thomas’s troubles stem from his failure to report certain benefits, which he described as “personal hospitality, not subject to disclosure under the law.” However, these benefits were provided by individuals closely linked to significant court cases. Moreover, his wife’s active involvement in politically charged efforts to challenge election results has compounded the issue.

Justice Alito’s situation is similarly fraught, with the revelation that political flags were flown at his residences during a contentious political period. While he attributed the act to his wife, the symbolism associated with these flags can be perceived as a partisan statement undermining public confidence in his impartiality as a Justice. More recently, some Democrats have suggested impeaching Justice Brett Kavanaugh for alleged perjury during his confirmation hearings, and Justice Amy Coney Barrett for her perceived conflict of interest in cases related to the 2020 presidential election.

In response to these controversies, Congresswoman Alexandria Ocasio-Cortez (D-NY) has introduced articles of impeachment against both justices. With a Republican-controlled House, these articles might have the same fate as a snowball in summer. But AOC’s gesture raises an intriguing question.

Can you actually impeach a Supreme Court Justice?

Yes, a Supreme Court Justice can indeed be impeached. The U.S. Constitution provides this mechanism as a means to remove a justice for “Treason, Bribery, or other high Crimes and Misdemeanors.” The process mirrors that for impeaching a president — requiring a majority in the House for impeachment, and a two-thirds majority in the Senate for conviction. Given the current partisan divide in Congress, it is unlikely that such a supermajority could be achieved without overwhelming evidence of serious misconduct.

Historically, this process has been invoked very rarely, reflecting its severity and the high stakes involved in removing a top judicial officer. In fact, it’s only happened once in U.S. history, way back in 1805, and even then, the Senate acquitted the Justice in question.

The high bar for impeaching a Supreme Court justice is rooted in the principle of judicial independence. As Alexander Hamilton wrote in Federalist No. 78, “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.” This independence allows justices to make decisions based on their interpretation of the law, free from the fear of political retaliation. 

While AOC’s impeachment articles may be more symbolic than practical, they do shine a light on the murky world of judicial ethics. Supreme Court Justices are expected to be above reproach, impartial arbiters of the law, not globe-trotting gift recipients or partisan flag-wavers. The fact that these allegations are even being made suggests that, perhaps, the Court’s ethical guidelines could use a bit of a refresh.