In a direct attack on the rule of law, Pennsylvania state Rep. Cris Dush (R) sent a memo to his colleagues Monday evening asking them to cosponsor articles of impeachment against five of the state’s seven supreme court justices.
The justices’ crime? Striking down the state’s gerrymandered congressional maps, which allowed Republicans to win 13 of the state’s 18 congressional seats even in election years when Democrats won a majority of the statewide popular vote.
It’s a serious threat. Though the state supreme court’s decision dealt exclusively with the GOP’s successful effort to gerrymander the state’s congressional maps, the state senate maps also produced a senate that is far more Republican than the state as a whole (these maps were drawn by a 5 member commission, not the state legislature).
Republicans control more than two-thirds of the senate seats in Pennsylvania despite the fact that the state has a Democratic governor and Donald Trump’s margin of victory in the 2016 presidential election was less than 1 percentage point in the state. Under the state constitution, two-thirds of senators must concur with a majority of the state representatives in order to remove a state official from office.
So, to summarize, Pennsylvania Republicans have outsized majorities in the state legislature, despite the fact that the state is closely divided between Democratic and Republican voters. After the state supreme court voted 5-2 to rein in gerrymandering, the GOP may use its house majority and senate supermajority to remove all five of the justices that opposed gerrymandering.
Nor is this the first such escalation by the Pennsylvania GOP. Shortly after the state supreme court handed down its decision, two Republican leaders asked the Supreme Court of the United States for a stay. In support of this request, the Republican leaders relied on legal arguments that literally are at odds with 215 years of established law. On Monday, Justice Samuel Alito, one of the most conservative members of the Supreme Court, rejected this long shot bid for a stay.
Meanwhile, lawyers representing Pennsylvania Senate President pro tempore Joseph Scarnati (R) sent a letter to the state supreme court last week informing them that Scarnati refuses to comply with a court order intended to help the state justices unravel the gerrymandered congressional map. It remains to be seen if Scarnati will be held in contempt of court.
Should the state GOP impeach and remove the five justices who struck down the state’s gerrymander, they would break with a well-established norm that is more than two centuries old.
In 1804, the U.S. House of Representatives impeached Justice Samuel Chase, a staunch Federalist Party member who had taken genuinely reprehensible actions against Jeffersonians who criticized Federalist President John Adams. Though Jeffersonians controlled Congress during Chase’s impeachment trial, the Senate did not convict Chase.
Several Jeffersonians joined with Federalist senators to acquit Chase, warning that if a sitting judge could be impeached for their decisions on the bench, that would lead to dangerous incursions on judicial independence. For 214 years, Justice Chase’ acquittal has stood as a monument to the proposition that judges shall not be impeached because the legislature disagrees with their rulings.
Now, however, Pennsylvania Republicans want to throw this centuries-old norm in the wastebasket. They want to do so, moreover, to rescue their own lawless efforts to rig the state’s elections.