Ocasio-Cortez told NBC’s Meet the Press on Sunday that nominees to the Supreme Court shouldn’t be able to “lie under oath and secure lifetime appointments to the highest court.”
She appeared to be referring to the fact that four of the conservative justices who joined the majority opinion in Dobbs v. Jackson Women’s Health Organization suggested during their confirmation hearings that they considered Roe v. Wade to be “settled law” and would respect precedent.
“I believe lying under oath is an impeachable offense,” Ocasio-Cortez said. “And I believe that this is something that should be very seriously considered.”
Settled Law
Associate Justice Samuel Alito, who authored the majority opinion in Dobbs, called Roe “settled law” and “important precedent” during his 2006 confirmation hearings, but did not rule out re-examining it.
The three most recently appointed justices—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—were all asked about Roe during their confirmation hearings and all referred to the importance of precedent.
However, they did not say definitively that they would refuse to overturn Roe if the matter came before them.
Gorsuch said in 2017 that a good judge would consider Roe “as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”
In 2018, Kavanaugh said Roe was “important precedent” that had been “reaffirmed many times, while Barrett said in 2020 that she would “follow the law of stare decisis”—meaning showing a respect for precedent.
All three voted to overturn 1972’s Roe and 1992’s Planned Parenthood v. Casey when they joined the majority opinion in Dobbs. They found that the right to an abortion is not constitutionally protected.
It is constitutionally possible to impeach and remove members of the Supreme Court but only one justice has ever been impeached and it seems unlikely that any of the present justices could be successfully removed.
Impeaching a Justice
The U.S. House of Representatives has the authority to impeach a federal judge by a simple majority vote under Article I of the Constitution. However, a justice cannot be removed from office without a trial in the Senate and only if two-thirds of senators vote to convict, according to the Brennan Center for Justice.
Only 15 federal judges have ever been impeached in U.S. history and just eight of those went on to be convicted in the Senate.
Just one member of the Supreme Court has ever been impeached. In 1804, Justice Samuel Chase was impeached by the House and was accused of refusing to dismiss biased jurors and “excluding or limiting defense witnesses in two politically sensitive cases,” according to the Senate’s website.
Chase was acquitted by the Senate in 1805 and the case is seen as a highly partisan incident as Chase, a Federalist, was impeached after criticizing President Thomas Jefferson before a grand jury in Baltimore, Maryland.
Grounds for Impeachment
Lying under oath may seem like an obvious reason to bring impeachment charges against a Supreme Court justice but Paul Collins, a legal studies and political science professor at the University of Massachusetts, in Amherst, tells Newsweek that the grounds for impeachment were more of a political matter.
“Because impeachment is a political process, what is and is not an impeachable offense is up to the House and Senate,” Collins says.
“I think an argument can be made that justices who indicated during their confirmation hearings that they would support the precedent of Roe v. Wade misled the public when they voted to overrule Roe,” he says.
“I do not believe this amounts to perjury, but it may be demonstrative of failing to engage in good behavior, which is one interpretation of the standard by which judges may be impeached,” Collins adds.
During a Senate trial, those in favor of impeachment would have to convince two-thirds of senators that the justices had lied under oath. That seems highly unlikely given the current 50-50 split in the chamber.
The Justices’ Rulings
While Representative Ocasio-Cortez cited the conservative justices’ statements during their confirmation hearings as potential grounds for impeachment, some critics of the Court may believe they should be removed because of their decision in Dobbs v. Jackson Women’s Health Organization.
The late Chief Justice William Rehnquist wrote a book about the history of judicial impeachment and noted early uses of impeachment in U.S. history established the norm that “judicial acts—their rulings from the bench—would not be a basis for removal from office by impeachment and conviction.”
That tradition would seem to preclude impeachment based on the Dobbs decision itself but removing justices remains a political question.
