The Impeachment of Justice Samuel Chase and the Rise of Judicial Review

• Author: Richard A. Dean
• Position: The author is a partner with Tucker Ellis LLP, Cleveland.
• Pages: 10-11

Published in Litigation, Volume 46, Number 1, Fall 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 10

electronic devices during many hours of

the day (the trial) and may not do internet

research.

Jury consultants contend, and I agree,

that the teaching function of a trial lawyer

is more important with millennials than

with other generations. Technology has

helped make them more educated than

any previous generation. Pew reports that

39 percent of millennials have a bachelor’s

degree or higher, and that an additional 28

percent have attended some college, com-

pared with 24 percent (college or above)

and 21 percent (some college) for what

Pew calls “early boomers.”

They also have some disturbing lean-

ings for my line of work, which is litigating

to keep protections for free speech at the

maximum. Pew reports that an astonish

-

ingly high percentage of millennials—40

percent—would approve the government’s

prevention of statements that are offen-

sive to minority groups. This compares

with 27 percent for Gen Xers and 24 per

-

cent for baby boomers. The lawyer with

a free speech case will have to pay special

attention to prospective millennial jurors.

What should the trial lawyer do in se-

lecting a jury panel when confronted with

a prospective millennial juror? Of course,

it depends on the case and the client. But

most consultants will tell you that the

millennial is dangerous for the corporate

defendant. So the defense lawyer has to

pay special attention to the attitudes of

these jurors toward big business, whether

they work in the corporate environment

and have been treated fairly, whether their

friends and colleagues have been treated

fairly, what their work ethic is, whether

they have educational debt, and whether

they got participation trophies when in

school (I’m serious). One of my favorite

jury questions is this: “Do you believe in

the letter of the law or the spirit of the

law?” The answers should help you tell

the millennial who will hurt the defense

case from the one who will help it.

I selected a state court jury recently that

had a number of millennials, and when

they were seated, I broke into a cold sweat.

I said to myself, “How could you have al-

lowed this to happen? This is the most

pro-plaintiff jury I have ever seen.” And

then I remembered—I was representing

the plaintiff. The jury awarded “additional”

damages beyond what we were asking. q

LEGAL LORE

The

Impeachment of

Justice Samuel

Chase and the

Rise of Judicial

Review

RICHARD A. DEAN

The author is a partner with Tucker Ellis LLP,

Cleveland.

Only one justice of the U.S. Supreme Court

has ever been impeached—Samuel Chase—

but he was not convicted by the Senate.

The story of his impeachment proceedings

in 1804 and 1805, most notably published

exactly a century ago in the third volume

of former senator Albert Beveridge’s The

Life of John Marshall (Houghton Mifflin

Co. 1919), may show we were even more

divided as a country during Chase’s time

than we are now.

In the waning days of President John

Adams’s administration, the Federalists

passed the Judiciary Act of 1801. It reorga-

nized the federal circuits and provided for

the appointment of a number of additional

judges, who, of course, were Federalists.

But with the election of a Republican

wave in 1800, Congress rescinded that

act. There was open warfare between

the parties, not only as to who the judges

should be but also as to what they should

be able to do.

The Federalists were believers in judi-

cial review. In Federalist No. 78 Alexander

Hamilton wrote, “The interpretations of

the laws is the proper and peculiar prov-

ince of the Courts.” This was certainly

general understanding of the key fram-

ers of the Constitution. But Jefferson

and his Republicans were adamantly op-

posed to such review. He wrote, “To con-

sider the judges as the ultimate arbiters of

all constitutional questions would place

us under the despotism of an oligarchy.”

Republicans believed the ultimate power

was in the state and that an individual

state legislature could declare an act of

Congress to be unconstitutional.

Jefferson was many things, includ-

ing a cutthroat politician. His view was

to replace as many Federalist judges as

possible. Those he could not replace he

would try to get impeached. This general

Republican position was reinforced by

Justice Marshall’s decision in Marbury

v. Madison, which established the prin-

ciple of judicial review. Republican

Senator William Branch Giles of Virginia

was heard to comment, “We want your

offices for the purpose of giving them

to men who will fill them better.” The

Republicans believed that judges could

be removed for any cause the majority

party deemed sufficient.

The first target for Republicans was

Judge John Pickering of New Hampshire,

who held Federalist views. President

Jefferson sent information to the House

of Representatives charging Pickering

with “unlawful rulings” and being intoxi-

cated while on the bench, and demand-

ed his impeachment. There was no dis-

pute as to the intoxication charge. Judge

Pickering was also insane. Nonetheless,

the Federalists objected that he had

committed no “high crimes or misde-

meanors.” The House voted impeach-

ment. Pickering was convicted in March

1804. Henry Adams, a great admirer of

Jefferson, in his classic history of the

United States, called the result “an infa-

mous and certainly an illegal conviction.”