Academic

Perlin on the Chase Impeachment & Judicial Independence

By Lawrence Solum

Adam A. Perlin has posted The Impeachment of Samuel Chase: Redefining Judicial Independence (Rutgers Law Review, Vol. 62, No. 3, p. 725, 2010) on SSRN. Here is the abstract:

This article hopes to make the following contributions to the existing academic scholarship:

First, some legal scholars have ignored how the impeachment contributed to the modern apolitical judiciary or have construed its contribution too narrowly. This article provides a fuller explanation of the impeachment?s contributions to our modern understanding of judicial independence and what properly constitutes an impeachable offense.

Second, the article touches upon the contribution the debates over Chase?s impeachment made to more peripheral subjects, such as the debates over jury nullification and judicial review.

Third, this article fills a void in the academic literature, as there are almost no articles fully addressing the ?story? of Chase?s impeachment and even fewer which analyze the importance of the debates in the House of Representatives and the examination of the trial witnesses.

Given the increasing attention devoted to judicial activism and persistent calls for the impeachment of federal judges, the lessons of the Chase impeachment are perhaps more relevant today than ever before. By addressing the issues mentioned above, this article endeavors to draw greater attention to a major event in American legal history and to give a turning point in the history of impeachment and the judicial branch the attention it deserves.

And from the paper:

Chase?s impeachment shifted the balance of power between Congress and the Supreme Court and forever ensured that judicial independence would shield the Court from the use of impeachment as a political solution to a party?s discontent with the judiciary. In affirming that the Supreme Court is not subject to the political whims of Congress, however, the impeachment also raised expectations placed on courts and planted the seeds for a new era of judicial deference to congressional policy and a permanent abstention on the part of judges from partisan activity on the bench.382 As Judge Thomas Schneider has phrased it, had Chase been convicted and Marshall removed, ?[w]e can only speculate how different our jurisprudence would be today without the great chief justice?s long tenure. But we can safely guess that the independence federal judges take for granted today, if achieved at all, would only have been achieved with far greater struggle.?383

In the two-hundred-plus years since Chase?s acquittal, no other Supreme Court Justice has ever been impeached?a testament to how powerful the precedent established by Chase?s trial is and how embedded in the American psyche the idea of an independent judiciary has become following his impeachment.

Full post as published by Legal Theory Blog on February 17, 2011 (boomark / email).