Constitution Daily

Smart conversation from the National Constitution Center

State judges have been impeached, but very rarely

February 26, 2018 by Scott Bomboy

 

At least three elected officials in Pennsylvania have mentioned the topic of impeaching and removing five state supreme court judges in an election-map controversy. How unusual would that be and are there any precedents?

The impeachment of state-level supreme court judges is rare. The National Council of State Legislatures could only cite a handful of instances in a special website section on the subject of impeachment.

The most prominent impeachment of a state supreme court judge was actually in Pennsylvania. In 1994, State Supreme Chief Judge Rolf Larsen was impeached by a majority of the state House and convicted by two-thirds of the state Senate for meeting privately with an attorney to decide the outcomes of cases. 

A research report compiled for the state legislature of Connecticut in 2004 contained several more obscure examples of state supreme court judges who faced impeachment and removal. In 2000, four New Hampshire state supreme court judges faced impeachment threats, and one, Chief Justice David Brock was impeached on four charges, but not convicted of any in the state Senate.

In 1872, two New York Supreme Court justices faced the possibility of impeachment because of their connections to the corrupt Tweed Ring, George G. Barnard and Albert Cardozo. Barnard fought the charges but was removed by the state assembly. Cardozo resigned and is more known today as the father of Supreme Court Justice Benjamin Cardozo.

And in 1790, New Hampshire Superior Court Judge Woodbury Langdon was impeached for refusing to hold trials in three counties, but he resigned before his trial to accept a position as a commissioner for President George Washington. (Langdon’s brother, John, was one of the Constitution’s signers.)

In recent years, there has been a trend for state lawmakers to threaten to impeach state judges for a variety of reasons. A 2010 research report from the National Center for State Courts detailed some of these efforts, including moves to remove judges for their court decisions. Bills were filed in the state legislatures of Massachusetts, Iowa and New Jersey to remove state supreme court judges who approved same-sex marriages. Also in Iowa, another proposed bill threatened any judge who considered the word “penumbra” in a court decision. A current bill in Alaska and a recent one that failed in Kansas would make state supreme court judges eligible for impeachment if they exercised legislative powers.

Pennsylvania’s current state constitution specifies that state supreme court judges can be considered for impeachment for acts of misbehavior. While Pennsylvania Republicans have exactly a two-thirds majority in the state Senate, half of the state senate’s seats are up for re-election in November – making any impeachment effort problematic.

But if the five Pennsylvania state supreme court judges were impeached, they would face steep odds in an appeal to the United States Supreme Court. The nation’s highest court usually stays out of state constitutional disputes, but such a novel case could also present unique due process and free speech arguments in any appeal.

Scott Bomboy is the editor in chief of the National Constitution Center.

 

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