Samuel Alito, Clarence Thomas and the politics of the moment

Once a House Speaker is finally selected, hearing rooms on Capitol Hill may fill up quickly in the New Year. House Republicans promise a series of investigations into the Biden administration as the 118th Congress convenes this month. Meanwhile, Senate Democrats are scrutinizing the conduct of conservative members of the Supreme Court.

Judiciary committee Chairman Richard Durbin (D-Ill.) is considering a probe into Justice Samuel Alito’s alleged leak of the court’s 2014 decision in Burwell v. Hobby Lobby, which covered contraception and religious rights.

The allegation comes in the wake of the May 2 publication of the draft of Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, which on June 24 overturned Roe v. Wade, the 1973 abortion decision. Chief Justice John Roberts ordered an investigation into the leak, but to date no results of the probe have been released.

Durbin has also criticized Associate Justice Clarence Thomas for failing to recuse himself from cases involving his wife, Ginni Thomas. She attended the Jan. 6, 2021 rally and urged White House Chief of Staff Mark Meadows to prevent the election from being certified. 

At a time when confidence in the high court is at a historic low, it’s worth looking back at earlier controversies involving Supreme Court justices and the politics surrounding them.

The only justice ever impeached was Maryland’s Samuel Chase, a signer of the Declaration of Independence. A judge with Federalist sympathies, he was publicly critical of President Thomas Jefferson and the Democratic-Republicans for dismantling the lower court network established in 1801 by President John Adams’s administration. 

In retaliation, the Democratic-Republican House impeached him on a series of trumped-up charges, alleging he “behaved in an arbitrary, oppressive, and unjust way” in court. He was acquitted at his Senate trial — presided over by Vice President Aaron Burr, himself under indictment for the murder of Alexander Hamilton.

The Chase affair established a dual precedent — one that ensures justices cannot be removed for voicing their opinions but that demonstrates they are best served by keeping their politics private. One hundred sixty years later, it was just such a too-political justice who was forced to step down from the bench. 

Abe Fortas was a close ally of President Lyndon Johnson, who successfully nominated him for associate justice in 1965. But that intimacy became a liability in June 1968, when Johnson, a lame duck president, nominated Fortas to replace Chief Justice Earl Warren.

The official Senate history notes that “As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam.” He also received from private interests an inflated fee to teach a summer course at American University. 

Amid a conservative reaction to Johnson’s Great Society and the liberal advances of the 1960s, a coalition of Republicans and Southern Democrats filibustered the nomination, which Johnson withdrew on Oct. 1. 

Fortas’s troubles were not over. In 1969 it was revealed that, in 1966, he had begun receiving a retainer of $20,000 a year for life from the foundation of Louis Wolson, a former client who was subsequently convicted of securities fraud. His political capital depleted by the nomination fight, Fortas resigned under pressure on May 15.

The only justice threatened with impeachment after Samuel Chase was the controversial and colorful William O. Douglas. A graduate of Yale Law School, where he taught and mentored Fortas, Douglas also leveraged his political alliances.

A New Dealer, he was chair of the Securities and Exchange Commission when President Franklin Roosevelt appointed him in 1939. Sitting on the court, he maintained his close ties to the White House, and Roosevelt even considered making him his 1944 running mate, before choosing Harry Truman.

During the anti-communist hysteria of the early 1950s, his liberal leanings made him the target of politically motivated accusations of high crimes and misdemeanors, none of which were seriously pursued in the House.

Then, emboldened in part by the Fortas affair, House minority leader Gerald Ford (R-Mich.) began impeachment proceedings in April 1970. Ford was motivated in part by Republican frustration with the Democratic Senate’s rejection of two of President Nixon’s Supreme Court nominees.

Douglas’s image had been sullied by his three divorces and a fourth marriage to a 22-year-old student in 1966. Against this backdrop, Ford attacked Douglas’s outspoken political views, citing his affinity for “leftist militants” and his authorship of a book which “fanned the fires of unrest, rebellion, and revolution.” 

The more serious charges were financial. For nearly a decade Douglas was a director of the Parvin Foundation. Founder Albert Parvin had Las Vegas casino interests and was known to associate both with members of organized crime and with Louis Wolfson. Douglas earned a total of $100,000 from the position, but severed his ties to Parvin after Fortas’s resignation.  

Ford did not help the gravity of his case by proclaiming that the justice was an advocate for pornography. He cited Douglas’s defense of the distribution of the X rated Swedish film “I Am Curious (Yellow)” and his contribution of articles on subjects like folk singing to obscure magazines that published photos of naked women.

Led by Judiciary Committee chairman Emmanuel Cellar (D-N.Y.), Democrats rallied behind the progressive Douglas in a way they had not with Fortas. Committee hearings ended in December with no further action. Douglas retired in 1976 during Gerald Ford’s presidency. His 36-year tenure remains the court record.

Perhaps the most significant constitutional legacy of the Douglas affair was an observation made by Ford himself. “An impeachable offense,” he declared at the time “is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

Ford’s candor is worth recalling in considering judgements rendered in House or Senate committees regarding justices, presidents or fellow legislators. From whichever side of the aisle investigations unfold, official misconduct is inevitably seen through the lens of the political moment.

Paul C. Atkinson, a former executive at The Wall Street Journal, is a contributing editor of the New York Sun.