Impeaching Justice Chase

The impeachment of a US Supreme Court justice that helped establish two critical norms

By Echelon.

Published on March 19, 2013 with No Comments

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By Mark Hager

Samuel Chase was spoiling for a fight. Cantankerous, belligerent and doctrinaire, he was also highly talented and resourceful as an associate justice on the U.S. Supreme Court, which was barely a decade in existence when Thomas Jefferson assumed the presidency in 1801. He despised everything Jefferson stood for, especially ‘democracy’ and a weak central government.

Chase clung fiercely to his ‘Federalist’ party principles. Under presidents George Washington and John Adams, with superb early guidance from Treasury Secretary Alexander Hamilton, the Federalists had established an effective federal (central) government under the brand-new Constitution–with solid credit and tax collection and wise foreign policy toward England and France, those warring giants. But Jefferson was sorely troubled. Along with James Madison, chief framer of the Constitution, and others in his ‘Republican’ party, Jefferson feared that any strong central government would favor the wealthy and might give rise to tyranny or even monarchy. Jefferson’s Republicans claimed to stand for the common man, not only through a weaker federal government with lower taxes but also by extending voting rights and public office to the non-wealthy.

(Confusingly, Jefferson’s ‘Republican’ party is forebear to today’s re-branded ‘Democratic’ party, while today’s ‘Republican’ party arose with Abraham Lincoln to oppose slavery some fifty years after Jefferson’s presidency. Even more confusingly, Jefferson’s Republican-Democratic party became the party of strong federal authority during the twentieth century under the premise that government could do things for common people not just to them. Lincoln’s Republican party went the other way. Originally favoring strong federal government to defeat rebellion and slavery in the Civil War and aftermath, it somehow in the twentieth century evolved into today’s small-government party.)

If you think U.S. party politics is nasty these days, don’t even mention the 1790s. Both parties deemed the other capable of destroying the republic in an eyeblink should it hold or gain power. While Republicans viewed Federalists as plutocrats and crypto-oligarchs, Federalists feared that a Republican regime, with its weak central authority and disrespect for wealth and education, would bring mob rule and terror a la the French Revolution, which played out bloodily over the course of the decade.

While Republicans empowered non-wealthy supporters and voters in organized election campaigns, Federalists continued to think that common people should and would defer to ‘natural aristocracy,’–that is, the Federalists–on matters of politics. While the haughty Federalists sat smug in their parlors, the mobilized Republicans of 1800 rolled up their sleeves and captured not only the White House but both houses of Congress, putting the Federalist party (though not its ideas of energetic federal power) on the road to extinction.

Before leaving office, however, the outgoing President Adams and Federalist Congress ushered into law the Judiciary Act of 1801. Nowhere was conflict more intense between friends and foes of strong federal government than over the proper role of the federal judiciary. A key question was whether federal courts should have authority to try civil cases involving federal law. This may seem like a no-brainer: Federalists insisted that a proper federal government needed a proper judiciary with primary authority to apply federal law. This was the case with federal crimes. Not so for civil cases, however.

Republicans thought it better that federal law civil cases be tried exclusively in state courts, reaching federal courts only on appeal of clear state court error. As the front-line (though not final) interpreters of federal law, state courts would carry the work load, keep the federal bench small in size and give the states a strong role in shaping federal law while ensuring that it did not get too powerful. A strong federal bench, by contrast, would inherently favor federal power. To Republicans, that was like letting a burglar guard the jewels.

In compromise, the Constitution left federal courts without ‘federal question’ jurisdiction in civil cases, but authorized future Congresses to confer it as they saw fit. The last thing Federalists did on their way out was precisely that, putting federal courts in the driver’s seat on federal law: the Judiciary Act of 1801. They thought this might protect federal power from Republican onslaughts. Having lost the White House and Congress, Federalists still controlled the federal bench, with lifetime appointments. The first thing the incoming Republicans did was to repeal the Act. Justice Chase’s blood began to boil.

What were federal judges doing, by the way, if not trying ‘federal question’ cases? With so few felony statutes on the federal books back then, they could have handled their criminal dockets between leisurely bouts of whist. They kept busy, oddly enough, hearing state law civil cases, those involving parties from different states. The Constitution gave them authority to hear such ‘diversity’ cases so that suits with adversaries from different states could receive neutral adjudication, avoiding state court bias against outsiders. With repeal of the 1801 Act, a seemingly topsy-turvy system remained in place whereby state courts handled most federal law issues and federal courts handled mainly state law cases, routine contract and property disputes, for example. This continued until 1875, when Congress re-conferred the federal courts with ‘federal question’ civil jurisdiction: never repealed, though in theory it could be.

Around the same time as repeal of the Judiciary Act, the Republican legislature in Maryland, Chase’s home state, took the outrageous step of extending voting rights to all adult white males, even those who owned no property. To Chase, men without property could not possibly understand political affairs. From his Federalist Supreme Court bastion, the horrified Chase believed he could see the republic’s ruin at the hands of a Jeffersonian rabble. In his fevered eyes, it was Paris, 1792.

With the federal bench so small, Supreme Court justices did ordinary trial work on top of their appellate duties. Chase was presiding over a Baltimore grand jury inquest whether certain people should be charged with crimes, when he exploded in a completely irrelevant political tirade against the Maryland voting rights extension and repeal of the 1801 Judiciary Act. He called Republican rule a “mobocracy,” predicting it would “progress until peace and order, freedom and property, shall be destroyed.” He went on and on, his huge head shaking with rage, in a thoroughly disgraceful display.

Over in the U.S. House of Representatives, arch-Republican John Randolph rubbed his manicured hands in glee. He saw a chance to impeach Chase, remove him from the bench and perhaps use the resulting momentum to take down the rest of the Federalist Court, especially the brilliant and wily Chief Justice John Marshall. A dazzling spontaneous orator specializing in the witty wicked put-down, the pale and aristocratic Randolph was also a dog-lover, an opium user to deal with life-long tubercular pain, and an ideological fanatic to match Chase at the other end of the spectrum. Though fervent, his Republicanism was also ambiguous. He had no enthusiasm for extending political participation to the non-propertied, but his fear of federal power overcame his distaste for democracy.

As with many other slave owners, Randolph could be suspected of opposing federal power because it might someday be used to free the slaves. Yet he freed his own slaves upon his death, a deed matched by George Washington, but precious few others. “I give and bequeath to all my slaves their freedom, heartily regretting that I have ever been the owner of one,” he wrote in his will.

Randolph had been gunning for Chase quite some time now. Back in 1800, Chase had campaigned openly for Adams against Jefferson. Even fellow Federalists viewed this as unseemly partisanship for a sitting Supreme Court Justice. Republicans also resented Chase’s alleged harshness and misconduct as judge in criminal trials during the Adams administration. Chase had handed out stiff fines and even jail time to dissenting newspaper editors under the Sedition Act, passed by the Federalist Congress. The Act outlawed abusive criticism of the government.

The U.S. had been engaged at the time in an undeclared naval war against revolutionary France, which was trying to shut down American trade with Great Britain. Today a law like the Sedition Act would probably be declared unconstitutional, as an infringement of free speech. Republicans denounced the Act as suppression of legitimate dissent, but Federalists defended it as preventing domestic aid and comfort to the French enemy. Fortunately, matters never escalated to all-out war. Adams kept a cool head even as co-Federalists like Hamilton, keen to change his lawyer’s wig for a general’s sword, agitated for full-on hostilities.

If the election of 1800 was a rude awakening for Federalists, 1804 was a disaster. Landslide tallies kept Jefferson in the White House and fortified Republican control in Congress. Ominously for Chase, Republicans now held lopsided 25-9 control of the Senate, which would vote whether to remove him from office should the House of Representatives charge him with ‘high crimes and misdemeanors’ under the Constitution’s specified impeachment standard. Having masterminded the House into voting Chase’s impeachment, Randolph led the prosecution in the ensuing Senate trial.

On a party-line vote, Chase would be convicted and removed by more than the required two-thirds majority. To secure acquittal, Chase would need at least three Republican senators on his side. In accord with the Constitution, Republican vice-president Aaron Burr would preside over the trial. This was surreal, since Burr was wanted for murder in two states.

Just a few months earlier, Burr had killed Hamilton in a duel with pistols atop New Jersey’s Hudson River bluffs, just across from Manhattan. The duel had less to do with party politics than with personal animosity dating back at least a decade. Both were exceptionally capable and charismatic, both reviled by some for their ill-concealed ambition, both on record for their anti-slavery views and for their attentiveness to the ladies. Rivals in the New York City bar and New York State politics, they had clashed a number of times, thwarting each other’s careers. No one knows exactly what insult Hamilton uttered or why, when Burr heard of it, he issued a challenge rather than shrugging it off in his usual thick-skinned fashion.

With almost unimaginable self-control, the fugitive Burr strolled to the dais and gavelled Chase’s trial to order. He won plaudits all round over the ensuing weeks for conducting proceedings with decorum and judicious non-partisanship. Randolph turned out to be far less impressive as prosecutor than as polemicist. Shrill and hectoring, he came off badly against Chase’s thoughtful and well-prepared defence team. John Adams’s son, John Quincy, may have been biased in Chase’s favour, but many embarrassed Republicans privately agreed with his eyewitness account of Randolph’s closing argument: “without order, connection, or argument; consisting altogether of the most hackneyed commonplaces…, mingled up with panegyrics and invectives upon persons…, much distortion of face and contortion of body, tears, groans, and sobs, …and continual complaints of having lost his notes.”

Led by that usually-drunk but always meticulous lawyer’s lawyer, Luther Martin, Chase’s defence stressed that removing a judge for professional misbehaviour alone would set a dangerous precedent. It would imperil judicial independence by making it too easy for political adversaries to attack the bench. Of course, Chase’s grand jury harangue was naked political partisanship, not just run-of-the-mill unprofessionalism. But a number of Republican senators, with misgivings all along about using impeachment as a political weapon, responded to Martin’s warning. The Senate voted 19-15 for Chase’s removal, but this fell short of the required two thirds. Six Republican senators joined the Federalists in voting for acquittal. Chief Justice Marshall must have breathed his own sigh of relief.

The very next day, Burr delivered his farewell address to the Senate, which he had chaired in accord with his Constitutional duty during his four-year vice-presidential term, due to end only three days later. Burr spoke movingly of shared service and the Senate’s critical importance in America’s governmental scheme, so recently exemplified. It must have been quite a performance. Upon Burr’s departure, according to one eyewitness, there was “solemn and silent weeping” on the Senate floor.

His career on the skids, Burr then launched a mad scheme, attempting to assemble a private army in New Orleans, attack Mexico and set himself up as emperor there, perhaps taking some of the United States with him. After the scheme fell apart, Burr was arrested and put on trial for treason. Jefferson wanted Burr convicted and said so, which was not exactly proper from the chief executive. Maybe he blamed Burr somehow for Chase’s acquittal. Maybe he was still sore that Burr had tried to get himself elected President in a backroom deal with the Federalists back in 1800, all the while feigning loyalty as Jefferson’s vice-presidential candidate. Burr and Jefferson liked each other about as much as Burr and Hamilton, or as much as Hamilton and Jefferson for that matter.

A curious epilogue to Chase’s trial, Burr’s featured some of the same players in new roles. John Randolph half-heartedly chaired the grand jury that charged Burr, rightly suspecting that the prosecution was a put-up job. The still-drunk but effective Luther Martin led Burr’s defence, with the trial judge none other than Chief Justice Marshall. Marshall loathed his second cousin Jefferson, and vice versa, on matters of both political principle and personal style. (Marshall, for example, called Jefferson ‘lama of the mountain’ for his utopian political outlook, while Jefferson mocked Marshall’s ‘lax lounging manners’ as an avid tavern-goer.) After the prosecution presented its feeble case, the Chief Justice convinced the jury to acquit for lack of proof that Burr had ‘levied war’ against the United States under the Constitution’s definition of treason. This may have been Marshall’s simple duty, but it may also have been payback to Jefferson over the Chase impeachment and gratitude to Burr for helping rescue Chase and perhaps Marshall himself from the Republican marauders.

As time went by, it became clear that Chase’s impeachment had helped establish two critical norms. Impeaching judges on political grounds is out of bounds. So is political partisanship from the bench. Shunning further misbehavior, Chase served the Court with distinction until his death in 1811.

> A graduate of Harvard Law School, Hamiltonicus (Mark Hager) lives in Pelawatte with his family. 
mark.hager@gmail.com

 

 

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