The impeachment power is nearly 700 years old—Parliament first used it in the year 1376—but it wasn’t until this month that the Kentucky Supreme Court decided it could block the people’s elected representatives from exercising this ancient constitutional power.
In a 5-1 ruling, the justices ordered the state’s House of Representatives to halt its impeachment of Lexington trial judge Julie Muth Goodman on the theory that judges can only be removed from office for “an actual, indictable crime or an offense in office constituting the most reprehensible moral turpitude.” Because the representatives want to remove Judge Goodman based on what they consider wrongful rulings, instead of criminal activity, the justices ordered the impeachment stopped.
But nothing in Kentucky’s Constitution—or any other constitution, for that matter—limits the impeachment power in this way. And by manufacturing this rule, the justices have put a dangerous obstacle in the way of the people’s power to control their own officials.
The impeachment power is an invaluable tool for removing public officials, not just for “crimes” but for intolerable behavior in public office. Perhaps the clearest example is the impeachment of Massachusetts Chief Justice Peter Oliver in 1774, which was spearheaded by none other than John Adams.
Adams’s complaint was that the British Parliament had announced that it would appoint, and pay, the colony’s judges directly from London—thus taking away those powers from the colony’s legislature. That risked making the courts into mere instruments of British power, which Adams thought intolerable. So, when Oliver said he would accept a paycheck from Parliament, Adams declared that impeachment was “essential to the preservation of the constitution in some cases that could be reached by no other power” and led his colleagues in demanding Oliver’s removal, and that of any other judge who accepted payment from the British government.
Adams and other founders recognized that impeachment isn’t just for cases involving crimes—it’s part of the checks and balances that preserve freedom in our constitutional system. Impeachment, wrote Alexander Hamilton, is for “offenses which proceed from the misconduct of public [officials], or, in other words, from the abuse or violation of some public trust. [These] are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
In other words, impeachment is not just about criminal or immoral conduct—it’s also a tool for ensuring against abuses of power that might not qualify as either criminal or immoral.
Imagine, for example, that the chief justice were to move to Fiji and refuse to preside over cases or to communicate with anyone back home. That wouldn’t be criminal or immoral, but it would certainly be a violation of public trust. Could it really be the case that the legislature couldn’t remove him?
To answer that question, the Kentucky justices pointed to a separate provision in the state constitution that establishes a commission to oversee the conduct of judges. This commission, the justices said, is the body that should decide such matters. But nothing in that provision says the commission is the only way to remove judges from office. And there’s no reason why both routes—removal by the commission or by the legislature—can’t coexist.
The idea that (as the court put it) “the judge removal lane … is, under most circumstances, reserved solely for the Judiciary” is not only illogical but dangerous, as it would exempt courts from one of the most critical components of our constitutional separation of powers. It’s an ancient legal rule that nobody can be the judge of his or her own case. But the Kentucky Supreme Court’s ruling makes the state judiciary exactly that.
That’s no exaggeration. Suppose the Legislature were now to try impeaching the Supreme Court justices for this absurd ruling. Would the judges try to declare their own impeachment invalid?
To ask that question reveals the essential problem. The power to remove public officials from office is one of the most crucial of all constitutional guarantees. Subverting it risks depriving the people of power over their own government.
The Kentucky justices also objected that the impeachment proceedings violated the constitutional principle of “due process of law” because Judge Goodman was, for technical reasons, unable to defend herself. But “due process of law” doesn’t apply to impeachments at all. It’s required only when a person is being deprived of “life, liberty, or property,” and public office isn’t any of those things.
On the contrary, judicial office belongs to the people, not the judge, and a vigorous impeachment power is indispensable to ensuring it remains that way.
Two centuries ago, James Madison said there was little reason to fear “judicial activism” because judges “can by various regulations be kept or reduced within the paths of duty, more especially with the aid of their amenability to the legislative tribunal in the form of impeachment.” But remove or constrain that power and who knows what the courts might do?
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
This op-ed was originally published at The Center Square-Kentucky.
