# SCOTUS Impeachment **URL:** \ **Category:** Factual Questions\ **Created:** [October 28, 2020, 7:36pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141 "2020-10-28T19:36:27Z")\ **Posts on this page:** 14\ **Page:** 2
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [October 29, 2020, 1:04pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/21 "2020-10-29T13:04:21Z")
> [@kanicbird](#): > > No matter how crystal clear it is, is not it up to the court to determine what it means, and they can do whatever they want? And the Senate could simply ignore the SCOTUS on this. Then we have a Constitutional crisis. It’s hard to see how anyone could take the SCOTUS seriously after that type of tortured interpretation of self-interest. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [October 29, 2020, 2:29pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/22 "2020-10-29T14:29:50Z")
> [@kanicbird](#): > > Could not the SCOTUS then declare the impeachment unconstitutional/invalid for whatever reason they desire and it would end there? Doesn’t the court have the final say on this? It’s hard to call something unconstitutional when it’s specifically mentioned in the Constitution. That’d be calling the Constitution unconstitutional and it’d be impossible to justify. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [October 29, 2020, 4:33pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/23 "2020-10-29T16:33:07Z")
> [@kanicbird](#): > > Wouldn’t that depend on the interpretation which is solely determined by the SCOTUS? No matter how crystal clear it is, is not it up to the court to determine what it means, and they can do whatever they want? I mean, it’s conceptually possible. In 1993, the Supreme Court held that impeachment was not susceptible to judicial review at all. But even Walter Nixon didn’t argue the actual “conviction” could be reviewed – he argued that he hadn’t been properly “tried” (since it wasn’t before the whole Senate). It’s certainly possible that the Court could revisit _Nixon_ (there were three votes for the proposition that impeachment processes should be reviewable). But I rather doubt it. And to take it to the extreme that you propose – that the Court would simply set aside impeachment (whatever that would mean) – is possible, in the way that all things are possible, but my answer remains “no”. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [October 29, 2020, 5:43pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/24 "2020-10-29T17:43:50Z")
> [@Falchion](#): > > I mean, it’s conceptually possible. In 1993, the Supreme Court held that impeachment was not susceptible to judicial review at all. But even Walter Nixon didn’t argue the actual “conviction” could be reviewed – he argued that he hadn’t been properly “tried” (since it wasn’t before the whole Senate). > > It’s certainly possible that the Court could revisit _Nixon_ (there were three votes for the proposition that impeachment processes should be reviewable). But I rather doubt it. And to take it to the extreme that you propose – that the Court would simply set aside impeachment (whatever that would mean) – is possible, in the way that all things are possible, but my answer remains “no”. I would not be surprised if a SC would overturn an impeachment if it perceived it as being a blatant political move. The legal basis would be the notion that “high crimes and misdemeanors” is also a part of the constitution can’t just be disregarded completely. I would be less confident of the SC precedent that you cite. Not on purely legal grounds. Just that - due to human nature - people tend to bend their views on technical matters in alignment with what they perceive to be an compellingly needed result, and I see this being manifested in legal rulings all the time. So I think how the Court rules on judicial review of impeachment when the impeachment is seen as “possibly questionable but legally within the bounds of reason” is not a good guide to how the Court might rule on that same question if it perceived the impeachment as being a blatantly obvious distortion of the constitutional process and the Court itself as being the only possible defense against that. ETA: I would also not be surprised if the Court looked differently at impeachment when directed at the Court itself. ---
**Author:** ![DesertDog](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/desertdog/32/11503_2.png) [@DesertDog](https://boards.straightdope.com/u/DesertDog)\ **Post date:** [October 29, 2020, 6:01pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/25 "2020-10-29T18:01:49Z")
> [@RealityChuck](#): > > It’s hard to call something unconstitutional when it’s specifically mentioned in the Constitution. That’d be calling the Constitution unconstitutional and it’d be impossible to justify. Well, I do remember a certain member of the executive branch asserting that the 14th amendment was unconstitutional a couple years ago. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [October 29, 2020, 6:16pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/26 "2020-10-29T18:16:57Z")
> [@Fotheringay-Phipps](#): > > I would not be surprised if a SC would overturn an impeachment if it perceived it as being a blatant political move. The legal basis would be the notion that “high crimes and misdemeanors” is also a part of the constitution can’t just be disregarded completely. > > I would be less confident of the SC precedent that you cite. Not on purely legal grounds. Just that - due to human nature - people tend to bend their views on technical matters in alignment with what they perceive to be an compellingly needed result, and I see this being manifested in legal rulings all the time. So I think how the Court rules on judicial review of impeachment when the impeachment is seen as “possibly questionable but legally within the bounds of reason” is not a good guide to how the Court might rule on that same question if it perceived the impeachment as being a blatantly obvious distortion of the constitutional process and the Court itself as being the only possible defense against that. > > ETA: I would also not be surprised if the Court looked differently at impeachment when directed at the Court itself. Maybe. There is only one member of the Nixon court still left on the Court (Thomas). White, Blackmun, and Souter (call it the more “liberal” wing of the court) seemed to want to leave it open if there was a truly “illegitimate” proceeding. But all of that is _procedural_ – it was entirely about _how_ you impeached a person, not _why_. I would say (somewhat outside of GQ) that the impeachment of Samuel Chase (a justice of the supreme court) was a blatant political move and pretty much untethered from the “high crimes” language. But, he was simply acquitted by the Senate; I’m not aware of any notion that a court could intercede in the process. And (we’ve discussed this elsewhere), it was important to several senators that the impeachment of John Pickering (who had clearly become incompetent due to to some medical/mental issue) that it be tethered to a “crime” (drunkenness on the bench) lest officers of the United States simply serve “at the pleasure of the legislature.” But still, everyone seemed to think it was incumbent on the Senate to police this, not the court system. (And the idea that judges and other officers serve at the pleasure of the legislature appears to be popular in certain political circles at present). ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 29, 2020, 6:26pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/27 "2020-10-29T18:26:47Z")
> [@Falchion](#): > > There is only one member of the Nixon court still left on the Court (Thomas). The Nixon court? Thomas is old, but he was only appointed by Bush the elder in '91. Nixon resigned in '74. ETA: If someone were on the court from 1974 to present, that would be an amazing 46 year tenure. The record is currently held by Justice Douglas at 36 years on the court. ~Max ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 29, 2020, 6:33pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/28 "2020-10-29T18:33:01Z")
Uh, nevermind. Different _Nixon_ case. ~Max ---
**Author:** ![Ranch\_Dip](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ranch_dip/32/5238_2.png) [@Ranch\_Dip](https://boards.straightdope.com/u/Ranch_Dip)\ **Post date:** [October 29, 2020, 6:50pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/29 "2020-10-29T18:50:46Z")
Thank you, everyone. This is an interesting discussion. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [October 29, 2020, 6:57pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/30 "2020-10-29T18:57:57Z")
> [@Max\_S](#): > > The Nixon court? Thomas is old, but he was only appointed by Bush the elder in '91. Nixon resigned in '74. The court that decided _Nixon v. United States_ in 1993 (the one on judicial review of impeachments). ---
**Author:** ![DesertDog](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/desertdog/32/11503_2.png) [@DesertDog](https://boards.straightdope.com/u/DesertDog)\ **Post date:** [October 30, 2020, 1:54pm UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/31 "2020-10-30T13:54:58Z")
> [@Max\_S](#): > > If someone were on the court from 1974 to present, that would be an amazing 46 year tenure. The record is currently held by Justice Douglas at 36 years on the court. I subscribe to _Ballot Access News_, a newsletter about small parties’ and independent candidates’ tribulations on getting on the ballot. Every issue has several court decisions and for the federal cases the writer always who appointed the judge(s) in parens after the judge’s name. A couple months back (Nixon) came up, the first in a long, long time. She must have been very young when she was appointed. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [October 31, 2020, 1:31am UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/33 "2020-10-31T01:31:12Z")
Also note the President is the only one AFAIK immune from being criminally charged while holding office. If there are valid charges - that don’t get thrown out at the first hearing - the judge can be charged, if sufficient evidence convicted, and would probably be unable to carry on their duties. Say, if a deeper investigation determined he had lied under oath to congress during his hearings. I assume a judge convicted of perjury would have a hard time justifying staying on the bench. Laying charges only requires a reasonable case, whatever the legalese definition is. Of course the political implications would be the kicker. If it were proven a crime was committed (beyond a reasonable doubt) then in any subsequent impeachment, it would reflect on any senator who decided that was not sufficient reason to remove. However, brings false or trivial charges would be seem as a form of harassment and political persecution if there was not suffciient grounds for such antics. I believe the “high crimes and misdemeanors” is generally taken to mean the crimes affect the way the president (or other officer) does their duties. You are not going to impeach someone for littering or speeding. DUI, maybe. Vehicular homicide, most likely (a smart person would resign first, but one case comes to mind where nothing happened). Sexual assault? Who knows. Certainly office-related cases like bribery should be impeachable. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [October 31, 2020, 2:19am UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/34 "2020-10-31T02:19:30Z")
> [@md-2000](#): > > Also note the President is the only one AFAIK immune from being criminally charged while holding office. This is by no means a universally held idea. Some believe it. Some do not. Nowhere is it written that he is (except by DOJ flunkies on the president’s payroll). - [Nancy Pelosi says Trump is not immune from indictment. Some legal experts agree.](https://www.washingtonpost.com/politics/2019/01/03/nancy-pelosi-says-trump-is-not-immune-indictment-some-legal-experts-agree/) ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [October 31, 2020, 3:37am UTC](https://boards.straightdope.com/t/scotus-impeachment/924141/35 "2020-10-31T03:37:46Z")
**Moderator Note** This thread is on the subject of impeachment of Supreme Court judges. Discussion of whether the President can be criminally charged is off limits. Stick to the question in the OP. Colibri General Questions Moderator [Previous page](https://boards.straightdope.com/t/scotus-impeachment/924141.md?page=1)