A free and impartial judiciary is a cornerstone of our constitutional democracy. Unfortunately, a group of Pennsylvania legislators is attempting to impeach Pennsylvania Supreme Court Justice David Wecht because they disagree with certain decisions of his. This impeachment effort is a ruthless attack on the principle of judicial independence — the bedrock idea that judges must be able to decide cases based on the law, rather than political or financial considerations. We urge the House of Representatives to defend this principle and refuse to act on the impeachment resolution.
In our constitutional system, judges may be impeached and removed for “misbehavior in office.” Procedurally, the Pennsylvania House of Representatives may issue articles of impeachment, which results in a trial in the Pennsylvania Senate. The senators are the jurors. An impeached public official can be removed from office if at least two-thirds of the senators agree on that result (at least 34 of the 50 senators). In December, we watched as President Donald Trump was impeached in the House, but acquitted in the Senate. The federal and Pennsylvania Constitutions use the same basic process for impeachment.
Substantively, judicial independence is written in the DNA of our country. In 1683, William Penn established life tenure for judges in the new colony of Pennsylvania. He was a strong advocate for judicial independence because he had experienced religious persecution in England that included unfair treatment by judges loyal to the crown. In 1776, the Declaration of Independence singled out King George’s control over judicial salary and tenure as among the tyrannies that motivated the Revolution. In 1788, writing in the Federalist Papers, Alexander Hamilton described the “complete independence” of the judicial as “essential” to the success of limited constitutional government.
Given the central importance of judicial independence to our constitutional system, impeachment is never a legitimate response to unhappiness with a judicial decision. This principle was established over 200 years ago. Samuel Chase was an ardent Federalist appointed to the Supreme Court in 1796. After Thomas Jefferson became president, Congress abolished judgeships created and filled by Federalists in the last days of the Adams administration. In 1803, Chase denounced Congress’ actions while charging a grand jury, telling them that the abolition of the judgeships, combined with Jefferson’s policies, would “take away all security for property and personal liberty” and that our constitutional system would “sink into a mobocracy.”
Jefferson saw Chase’s attacks as providing an opportunity to reduce Federalist influence in the judiciary. The House of Representatives took Jefferson’s hint by serving Chase with eight articles of impeachment, focused on Chase’s actions as a judge in trial court cases. (At this time, Supreme Court justices also served as trial judges.) The core allegation was that Chase had exhibited political bias that led him to treat certain parties unfairly. Chase’s impeachment led to a trial before the Senate, during which Chase primarily argued that he could not be impeached for legal error or improper behavior on the bench. In March 1805, the Senate — although filled with Jefferson supporters — acquitted Chase on all eight articles of impeachment. Chase’s emphatic victory established the principle that judicial acts do not provide a legitimate basis for impeaching a judge. The principle has governed our nation ever since.
Justice Wecht is a dedicated jurist who has dedicated his life to the rule of law. Impeaching him because he decided cases based upon his understanding of our constitution and statutes is a brutal threat to the independence of the judiciary. It violates norms that have protected our civic life for over 200 years. It threatens our entire system of government. Mindful of our history, we condemn the impeachment articles and urge the House to take no action.
Robert L. Byer is a lawyer at Duane Morris LLP in Pittsburgh and formerly served as a judge of the Pennsylvania Commonwealth Court and the Court of Judicial Discipline. Charles Becker is a lawyer at Kline & Specter P.C. in Philadelphia.