Chief Justice Marshall was never impeached

A lesson on U.S. judicial history


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In his otherwise solid column on the U.S. Supreme Court in the July 10-23 NH Business Review (“The high court and history”), Brad Cook wrote that Chief Justice Marshall was impeached after writing Marbury v. Madison, the famous decision establishing judicial review, which is the court’s right to rule on the constitutionality of the actions of the legislative and executive branches.

In fact, Marshall wasn’t impeached after Marbury or at any other time. Yes, the Federalist Marshall annoyed the Jeffersonian Republicans by insisting that the Federalist William Marbury deserved his commission to be a justice of the peace in the District of Columbia — the main issue of the case — but Marshall added that, contrary to the Judiciary Act of 1789, the Supreme Court lacked jurisdiction to order the Republican secretary of state (later president) James Madison to deliver the commission. 

Thanks (paradoxically) to Marshall, the Federalists actually lost the case — Marbury never got his commission — and that may have been the main reason Marshall was not impeached. But the Republicans won the case only because Marshall ruled part of the Judiciary Act unconstitutional, and that holding dwarfed the minor matter of Marbury’s commission.

In other words, Marshall sacrificed a pawn to win the big game. Marshall survived his decision, however, because the significance of his victory was only faintly grasped at the time. 

Instead of Marshall, Cook may have been thinking of Judge Samuel Chase, who, two years after Marbury, became the only Supreme Court justice to be impeached.

The charges against Chase, however, were his High Federalist harangues, especially one bemoaning Republican “mobocracy” during a charge to a grand jury (when the justices rode circuit).

Even the Republican majority in the Senate wouldn’t convict Chase, however, because his conduct wasn’t an indictable offense, let alone a “high crime” or “misdemeanor.” Like President Clinton’s impeachment, it was a Republican flop. 

Jefferson himself called impeachment a “bungling way of removing judges” and a “farce that will not be tried again.”

Jefferson’s prophecy has proven correct. Despite cries from the right, for example, Chief Justice Earl Warren was never impeached, let alone convicted, and not merely because a Democratic Congress would never have done it. 

Cook may also have been thinking of Judge John Pickering, who was both impeached and convicted in 1803. But Pickering was a district, not a Supreme Court, judge (in New Hampshire, incidentally) and the issues weren’t his Federalist opinions but drunkenness and profanity on the bench. Plus, during his trial, he was found to be insane. 

Robert Gillmore is a former constitutional law professor and now a landscape designer and author of “The Woodland Garden and Beauty All Around You: How to Create Large Private Low-Maintenance Gardens, Even on Small Lots and Small Budgets.” Evergreen, his one-acre woodland garden in Goffstown, is open to the public every year.

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