Congress Can Remove Ginsberg and Kagan from the Supreme Court!

Written by Dave Jolly

A few years back I asked a number of people how long does a Supreme Court Justice serve. Almost unanimously the response was until death or resignation. No one’s response was constitutional. There is nothing in the Constitution that says a Supreme Court Justice or any other federal judge serves for life or until they resign.

Here is what the Constitution says about the term of office of a Supreme Court Justice or federal judge:

“Article III.

 

Section. 1.

 

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.” [Emphasis mine]

There is nothing that says the appointments are for life, but does say they shall hold their office during good behavior.

What does it mean ‘good behavior’? Some have argued that means moral behavior but the most generally accepted understanding refers to how they conduct themselves on the bench and adhere a strict interpretation of the Constitution and the laws of land. First and foremost is adhering to the Constitution.

So what happens if a Supreme Court Justice does not follow a strict interpretation of the Constitution and starts ruling on what he or she wants the Constitution to say? That Justice is no longer serving in good behavior and therefore should be removed from the bench.

However, the Constitution says nothing about removing a Supreme Court Justice or federal judge from bench. Most legal experts believe that such a removal would constitute an impeachment[1] like that of a president or member of Congress.

The House was given the power to impeach an elected official:

“Article I.

 

Section. 2.

 

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.”

Once the House impeaches someone, the Constitution then gives the Senate to try the case:

“Article I.

 

Section 3.

 

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

 

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Therefore, it appears that the House has the right and power to impeach a Supreme Court Justice if he or she is not ruling in accordance with the way the Constitution was written and that the Senate then has the power and authority to try the case.

That means that they have grounds to impeach Justices Elena Kagan and Ruth Bader Ginsberg and summarily remove both of them from the Supreme Court.

In 2011, the Supreme Court was hearing a case involving the Affordable Care Act. A number of people called for Justice Kagan to recuse herself from the case. At the time when Democratic leaders were discussing the Affordable Care Act prior to it being passed by Congress, Kagan was serving as the Solicitor General of the United States. She had been present at one or more of those planning meetings. At the time she also wrote that she was quite enthusiastic to see the Affordable Care Act become law.

For those reasons, there was a definite conflict of interest for her to then sit on the Supreme Court and make a decision on the legal challenge being made against the very healthcare act that she participated in forming. Her refusal to recuse herself from the case and then voting against the legal challenge does not constitute good behavior.

Last year, there were calls and motions filed for both Justices Ginsberg and Kagan to recuse themselves from the same-sex marriage case before the Supreme Court. Both of them had presided at same-sex marriage ceremonies and Ginsberg was publicly open with her support of same-sex marriage. It was a general consensus that both of them had their minds made up before every walking into the hallowed halls of the high court to hear opening arguments. Neither of the two Justices would even entertain the idea of recusing themselves because they both wanted to remain on the bench to push their agenda.

Failure to recuse themselves is not acting in good behavior and the House has every right and authority to impeach both Justices, followed by the Senate who has the right to try, convict and remove them from the bench.

If only our so-called conservative Republican Congress would read and adhere to the Constitution and start impeaching Justices and judges who rule on agenda rather than on law, perhaps they’ll start thinking twice before doing it again.

 

[1] Gibbs, David Jr., and Gibbs, David III. Understanding the Constitution. Christian Law Association, Seminole, FL, 2006, Pp. 60-61.