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RED DOCENTE
EUROLATINOAMERICANA
DE DERECHO ADMINISTRATIVO
REVISTA
EUROL ATINOA MERICANA DE
DERECHO ADMINISTR ATIVO
VOL. 9 | N. 1 | ENERO/JUNIO 2022 | ISSN 2362-583X
SANTA FE | ARGENTINA | PERIODICIDAD SEMESTRAL
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Revista Eurolatinoamericana
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ISSN 2362-583X
25
Impeachment of judges: a brief historical
and comparative analysis between Brazil and the
United States of America
Impeachment de jueces: un breve análisis histórico y comparativo
entre Brasil y los Estados Unidos de América
BRUNO SANTOS CUNHA I,*
I Universidade Federal de Pernambuco (Recife, Brasil)
brunosc@umich.edu
https://orcid.org/0000-0002-4098-6404
Recibido el/Received: 21.01.2022 / January 21st, 2022
Aprobado el/Approved: 02.05.2022 / May 2nd, 2022
Abstract:
This article aims to uncover some less known uses of the
impeachment mechanism in Brazil and in the United Sta-
tes of America: judicial impeachment. On the one hand,
it aims at discussing how impeachment relates to the re-
moval of judges from public oce in these two countries,
namely when it comes to judges in the highest courts of
the judicial branch (Supreme or Constitutional Court);
on the other hand, the purpose is to discuss the connec-
tions between impeachment, judicial independence and
accountability. The idea is to use comparative constitu-
tional law methodology to address the historical back-
ground of impeachment and how it spread throughout
dierent jurisdictions along the way before arriving in
the Brazilian legal and constitutional scenario. In light of
that, one of the most relevant sources will be found in
precedents and legal doctrine regarding impeachment,
with a signicant focus on historical registers of its use
and relation to judicial independence. The nal objective
is to test and investigate whether judicial impeachment
can be seen or not as a mechanism that enhances judicial
Resumen
Este artículo tiene como objetivo discutir algunos usos me-
nos conocidos del mecanismo de destitución en Brasil y en
los Estados Unidos de América: el impeachment judicial. Por
un lado, pretende discutir cómo se relaciona la medida con
la destitución de jueces de cargos públicos en ambos paí-
ses, es decir, cuando se trata de jueces de los niveles más
altos del Poder Judicial (Corte Suprema o Tribunal Consti-
tucional); por otro lado, la idea es discutir las conexiones
entre impeachment, independencia judicial y rendición de
cuentas. El objetivo es utilizar la metodología de los estu-
dios jurídicos comparados para abordar los antecedentes
históricos del instituto del impeachment y cómo se extendió
por diferentes jurisdicciones en el camino antes de llegar
al escenario jurídico y constitucional brasileño. Dicho esto,
una de las fuentes de investigación más relevantes reside en
la jurisprudencia y la doctrina jurídica en torno al impeach-
ment, con especial énfasis en los registros históricos de su
uso y su relación con los presupuestos de independencia ju-
dicial. El objetivo nal es investigar si el impeachment judi-
cial puede o no ser visto como un mecanismo que mejora la
DOI 10.14409/redoeda.v9i2.11082
Como citar este artículo | How to cite this article: CUNHA, Bruno Santos. Impeachment of judges: a brief historical and comparative
analysis between Brazil and the United States of America. Revista Eurolatinoamericana de Derecho Administrativo, Santa
Fe, vol. 9, n. 1, p. 25-41, ene. /jun. 2022. DOI 10.14409/redoeda.v9i2.11082
* Doctoral student in Law from the Federal University of Pernambuco (Recife, Brazil). Master in State Law from the University of
São Paulo - USP (São Paulo, Brazil). LL.M. from the University of Michigan Law School (Michigan, EUA). Partner of Urbano Vitalino
Advogados. Attorney for the City of Recife. E-mail: brunosc@umich.edu
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Bruno Santos Cunha
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26
Contents:
1. Introduction: Judicial Impeachment; 2. Historical background; 3. Judicial impeach-
ment in the United States of America.; 4. The case of Brazil. References.
1. INTRODUCTION: JUDICIAL IMPEACHMENT.
According to the Black’s Law Dictionary, impeachment is ‘the act (by a legislature)
of calling for the removal from oce of a public ocial, accomplished by presenting a
written charge of the ocial’s alleged misconduct’.1 In Alexander Hamilton’s words in
The Federalist n. 65, the practice of impeachment was regarded as ‘a bridle in the hands
of the legislative body upon the executive servants of the government’.2 As the idea of
impeachment is entwined with the idea of misconduct (or, in the exact terms of the US
Constitution, ‘treason, bribery, or other high crimes and misdemeanors’)3, it is common
sense that the mechanism of impeachment is a remedy of last resort when it comes to
the accountability of public ocials. More than that, it is crystal clear that impeachment
is not ‘a way for political losers to overturn the outcome of a legitimate election’.4
The very rst idea that comes to mind when the word “impeachment” is heard is
always the same: the removal from oce of a President for an alleged misconduct. This
is true because our longstanding tradition regarding impeachment is tightly connec-
ted to the chief executive ocer in a republic such as the United States of America and
Brazil. Though the very idea of impeachment originated in England in the late 14th
century, it has fallen into disuse there since the beginning of the 19th century. Thus,
impeachment procedures and trials in England are not fresh in the countries’ collective
memory, being a purely historical matter.
When it comes to the United States of America and Brazil, the best (if not the only)
examples of impeachment procedures are the ones linked to the most prominent gu-
re in both democratic-republican countries: the president. The shared collective me-
mory in these countries, namely in the last twenty or thirty years, is full of examples of
1 GARNER, Bryan A. (Org.). Black’s Law Dictionary. 11.ed. St. Paul: Thomson Reuters, 2019. p. 901.
2 KESLER, Charles R. (Org.). The federalist papers. New York: Signet Classics, 2003. p. 396.
3 Article II, Section 4 of the US Constitution.
4 SUNSTEIN, Cass R. Impeachment: a citizen’s guide. New York: Penguin Books, 2019. p. 24.
independence in countries that still adopt the practice,
such as Brazil and the United States of America.
Kewyords. impeachment; Supreme Court judges; judi-
cial independence; Brazil; United States of America.
independencia judicial en países que aún adoptan la prácti-
ca, como Brasil y los Estados Unidos de América.
Palabras clave: proceso de destitución; jueces de la Corte
Suprema; independencia judicial; Brasil; Estados Unidos de
América.
Impeachment of judges: a brief historical and comparative analysis between
Brazil and the United States of America
Re v. Eurolat in. de Der echo Adm ., San ta Fe,vol. 9, n. 1, p. 25-41, e ne./jun. 2022. 27
debates about impeaching a president. For these reasons, it is easy to understand how
unfamiliar the expression “judicial impeachment” sounds to the general public and
even for scholars who are not specialized in the subject.
With these ideas in mind, this article aims to uncover some less known uses of the
impeachment mechanism in Brazil and in the United States of America: judicial impea-
chment. On the one hand, it aims at discussing how impeachment relates to the remo-
val of judges from public oce in these two countries, namely when it comes to judges
in the highest courts of the judicial branch (Supreme or Constitutional Court); on the
other hand, the purpose is to discuss the connections between impeachment, judicial
independence and accountability.
The idea is to use comparative constitutional law methodology to address the histo-
rical background of impeachment and how it spread throughout dierent jurisdictions
along the way before arriving in the Brazilian legal and constitutional scenario. In light
of that, one of the most relevant sources will be found in precedents and legal doctrine
regarding impeachment, with a signicant focus on historical registers of its use and
relation to judicial independence. The nal objective is to test and investigate whether
judicial impeachment can be seen or not as a mechanism that enhances judicial inde-
pendence in countries that still adopt the practice, such as Brazil and the United States
of America.
Though the very idea of impeachment originated in England in the late 14th cen-
tury, it has fallen into disuse there since the beginning of the 19th century. At the same
time, other jurisdictions started to adopt and develop it as a key feature in their consti-
tutional and governmental structures. As Cass Sunstein points out, the American Revo-
lution, the struggles for US independence and the Constitutional Convention of 1787
revived the idea of impeachment as a checks and balances’ tool. In his words, impe-
achment ‘became thoroughly Americanized. It turned into an instrument of popular
sovereignty, an emphatically republican weapon, a mechanism by which the people
might rule’.5
With the rise of liberal democracies since the end of World War II and the establish-
ment of several new constitutional regimes worldwide, it became common sense to
think of impeachment as the legal/political tool to remove from oce the President
in a democratic republic. It happens when the legislature nds evidence of an alleged
misconduct by the President. From this starting point, one of the main questions to be
addressed in this article is how the almost sacred concept of judicial independence is,
or at least should be, entwined with the practices, procedures and regulations of impe-
achment, as it emerged in England and developed in the United States of America as a
5 SUNSTEIN, Cass R. Impeachment: a citizen’s guide. New York: Penguin Books, 2019. p. 24
Bruno Santos Cunha
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28
check by the legislature in the other two branches: the executive and, for our purposes,
the judiciary.
As for the judiciary, the idea of impeachment as a check by the legislature emerges
as ipside feature of judicial independence. In a literal sense, judicial independence
refers to the ability of courts and judges to perform their duties free of inuence or con-
trol by other actors.6 For the purpose of this article, we intend to carry out an analysis
of the interaction between judicial independence and impeachment. More than that,
the idea is to discuss how judicial impeachment evolved from England to the United
States of America; later on, how it was received and incorporated in the Brazilian legal
and constitutional scenario.
At the same time that judicial independence intends to ‘insulate judicial decision-
-making and interpretation from corrupting outside inuences’7, it deserves to be
looked at as an idea that has a ipside which deals with the forms of corruption and
misconduct that are generated by the judges themselves.8 Put dierently, in order to
achieve judicial independence one may need mechanisms to debug the judicial system
and prevent misconducts and overreaches emerging from the judicial branch. In fact, it
seems ‘essential to balance judicial independence against judicial accountability and to
distinguish appropriate forms of inuence over the judiciary from inappropriate forms’.9
Henceforth, the idea is to analyze impeachment as a necessary ipside feature of
judicial independence. For such, it is imperative to consider the impeachment mecha-
nisms of dierent jurisdictions, in dierent times (through case law and by using a com-
parative framework). Thus, the focus of the research is based on three pillars: judicial
independence (as a prerogative of judges), judicial accountability (as a subjection to
judges) and the use of impeachment as a legal / political tool to remove judges from
oce by balancing these prerogatives and subjections. Adding up such variables leads
us to the conclusion that ‘the model of judicial accountability adopted in a given socie-
ty determines, to a large extent, the independence of the judiciary’.10
To begin with, the experiences of judicial independence, accountability and impe-
achment of judicial ocers from England, the United States of America and Brazil are
deemed as the relevant primary sources for the research. Even though impeachment
6 BADIE, Bertrand; BERG-SCHLOSSER, Dirk; MORLINO, Leonardo (Orgs.). International encyclopedia of
political science. v. 5. Los Angeles: Sage Publishing, 2011. p. 1369.
7 FEREJOHN, John A.; KRAMER, Larry D. Independent judges, dependent judiciary: institutionalizing judicial
restraint. New York University Law Review, New York, v. 77, n. 4, p. 692-1039, Oct. 2002. p. 972.
8 FEREJOHN, John A.; KRAMER, Larry D. Independent judges, dependent judiciary: institutionalizing judicial
restraint. New York University Law Review, New York, v. 77, n. 4, p. 692-1039, Oct. 2002. p. 972.
9 BADIE, Bertrand; BERG-SCHLOSSER, Dirk; MORLINO, Leonardo (Orgs.). International encyclopedia of
political science. v. 5. Los Angeles: Sage Publishing, 2011. p. 1372.
10 SHETREET, Shimon; TURENNE, Sophie Turenne. Judges on trial: the independence and accountability of the
english judiciary. 2.ed. Cambridge: Cambridge University Press, 2013. p. 2.
Impeachment of judges: a brief historical and comparative analysis between
Brazil and the United States of America
Re v. Eurolat in. de Der echo Adm ., San ta Fe,vol. 9, n. 1, p. 25-41, e ne./jun. 2022. 29
may not be the only way of removing a judge from oce, the main idea of a check in
the judiciary from the legislature’s side is historically present in all these countries.
This leads us to the normative and legal questions that are proposed by this arti-
cle: What is the scope of the parliamentary control over judges (especially Supreme
Court judges)? How impeachment relates to the removal of such judges from public
oce? In a broader sense, how it is related to judicial independence and to the rule of
law? Is impeachment the appropriate mechanism to check the judges in a Court of last
resort that is responsible for overseeing the government? To sum up, is impeachment
a proper means of controlling the misconduct of those who pave the way towards
juristocracy?11
Though these questions will be addressed in this article in some way, it is important
to establish that the main purpose of the study is to investigate how impeachment is
(or may be) used as a means of judicial oversight in Brazil. More specically, how our
Supreme Court judges are subject to this particular idea of legislative check: judicial
impeachment.
2. HISTORICAL BACKGROUND
Historically speaking, the idea of impeachment appeared for the rst time in English
history during the reign of Edward III (1327-1377). At the time, the English Parliament
of the 14th century was still experiencing and exploring its new roles after evolving
from the Great Councils about a hundred years before. Indeed, it was during the ‘Good
Parliament’ sitting in London from April 28 to July 10 of 1376 that the House of Com-
mons started impeachment proceedings against Richard Lyons, Lord Latimer and Lord
Neville for ‘lending funds to the Crown at exorbitant interest, and purchasing Crown
debts from creditors below value’.12
Taking the English scenario as a primary source for understanding impeachment,
it is possible to say that “impeachment is in fact a trial by the legislature, wherein the
Commons are the prosecutors and the Lords, exercising at once the functions of a high
court of justice and of a jury, return the verdict and impose the sentence”.13
One of the rst known proceedings involving judicial functions took place in 1386
when Sir Michael de La Pole (later Earl of Suolk), then Lord Chancellor, was impeached
by Parliament upon charges of several crimes.14 Two years later, in 1388, the “Merciless
11 For the concept and constitutional implications of juristocracy, see: HIRSCHL, Ran. Towards juristocracy: the
origins and consequences of the new constitutionalism. Cambridge: Harvard University Press, 2007.
12 FEERICK, John D. Impeaching federal judges: a study of the constitutional provisions. Fordham Law Review,
New York, v. 39, n. 1, p. 1-58, 1970, p. 5.
13 SHETREET, Shimon; TURENNE, Sophie Turenne. Judges on trial: the independence and accountability of the
english judiciary. 2.ed. Cambridge: Cambridge University Press, 2013. p. 305
14 HATSELL, John. Precedents of the proceedings in the House of Commons: with observations. v. 4. London:
Hansard and Sons, 1818. p. 57-58.
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Parliament” brought impeachment charges for treason against Sir Robert Belknap
(Chief Justice of the Common Bench), Sir Roger Fulthorpe, Sir John Holt and Sir William
Burgh (judges of the same Bench). They were impeached and the Lords stated ‘they
should be drawn and hanged as traitors and their heirs disinherited, and their lands,
tenements, goods, and chattels, forfeited to the King’.15 After conviction, it is said the
Queen interceded for them with partial success: rather than hanged, ‘they were all ba-
nished to Ireland for life with a yearly allowance of £20 and two servants’.16
These rst cases established the outlines of impeachment procedures, whilst at
least ten impeachments occurred between 1376 and 1459.17 With no impeachments
for more than a century, the procedures were brought back to stage in 162118, when
Edward Coke, then in Parliament after being dismissed by King James I from his post as
Chief Justice of the King’s Bench, revived the mechanism against his longtime enemy
Francis Bacon (then Lord Chancellor) and charged him with several counts of corrup-
tion for accepting bribes while in the bench.
The beginning of the 18th century brought another important development in jud-
ges’ tenures and judicial independence. Until the Act of Settlement of 1701 the tenures
of judges were basically dependent upon the pleasure of the Crown and the removal
of a judge was quite simple: the king had merely to revoke his patent (appointment
durante beneplacito).19 Though some judges held oce with tenures during good
behavior prior to 1701, the Act made the commissions quamdiu se bene gesserint (du-
ring good behavior) a matter of law. This meant that judges could only be dismissed in
consequence of a conviction for some oence or on the address20 of both Houses. The
15 HATSELL, John. Precedents of the proceedings in the House of Commons: with observations. v. 4. London:
Hansard and Sons, 1818. p. 60-61.
16 RIDDELL, William Renwick. Erring judges of the fourteenth century. Illinois Law Review, Champaign, v. 21,
n. 6, p. 543-558, 1926-1927, p. 553-554.
17 VOLCANSEK, Mary L. British antecedents for U.S. impeachment practices: continuity and change. The
Justice System Journal, Philadelphia, v. 14, n. 1, p. 40-62, 1990, p. 43. For specic information and a full list of
impeachment procedures during that time, see: HATSELL, John. Precedents of the proceedings in the House
of Commons: with observations. v. 4. London: Hansard and Sons, 1818.
18 As pointed out by Frederic William Maitland, ‘during the interval parliaments were hardly in a position to
impeach the king’s ministers, for it was as a check upon the king’s ministers that the impeachment was chiey
valuable, and came to be afterwards valued; smaller oenders could be left to their fate in the ordinary courts’.
Nevertheless, bills of attainder continued to be used for similar purposes. See: MAITLAND, Frederic William. The
constitutional history of England. Cambridge: Cambridge University Press, 1909. p. 215.
19 FEERICK, John D. Impeaching federal judges: a study of the constitutional provisions. Fordham Law Review,
New York, v. 39, n. 1, p. 1-58, 1970, p. 10.
20 MAITLAND, Frederic William. The constitutional history of England. Cambridge: Cambridge University
Press, 1909. p. 313. Address is a ‘legislature’s formal request to the executive to do a particular thing, such as
to remove a judge from oce’. See: GARNER, Bryan A. (Org.). Black’s Law Dictionary. 11.ed. St. Paul: Thomson
Reuters, 2019. p. 48. According to Feerick, address is a formal request by Parliament to the King seeking the
dismissal of a judge whose conduct, while wrongful, fails to warrant an impeachment trial. See: FEERICK, John
D. Impeaching federal judges: a study of the constitutional provisions. Fordham Law Review, New York, v. 39,
n. 1, p. 1-58, 1970, p. 11.
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Brazil and the United States of America
Re v. Eurolat in. de Der echo Adm ., San ta Fe,vol. 9, n. 1, p. 25-41, e ne./jun. 2022. 31
new legal framework cast some doubt on the possible ways of removing judges from
oce, but practice showed that the power to impeach judges was untouched by the
Act of 1701.21
The interesting point about judicial impeachments is that ‘in many cases judges
were impeached for supporting the Crown against Parliament, either in the exercise
of their judicial functions or in advice given extra-judicially. Even when the activities of
the impeached judges were improper or corrupt, the motives for instituting the pro-
ceeding were not conned to purifying the administration of justice’.22 This conclusion
reinforces one of the main ideas of the proposed article: on the one hand, investigating
impeachment of judges as a necessary ipside feature of judicial independence; on the
other hand, investigating the relation between impeachment and the rule of law. In
other words, here is question that arises: whether impeachment procedures are bound
or not to follow common law standards of proof and due process (as a judicial procedu-
re rather than a pure political one).
Impeachment remained as a tool for removing judges (and other public ocers)
in the United Kingdom until the beginning of the 19th century. In fact, the last time
Parliament started procedures was in the unsuccessful impeachment of Lord Melville
in 1806.23 For a number of reasons, impeachment in the United Kingdom after that ‘is
considered obsolete, as it has been superseded by other forms of accountability, and
the rules underpinning the procedure have not been adapted to modern standards of
democracy or procedural fairness’.24 In a nutshell, what started in England in the late
14th century – and developed during more than four hundred years – ceased to exist
in the British world (as the 1806 Lord Melville’s impeachment lead to no results at all).
Crossing the Atlantic, judges in the British colonies in America were either commis-
sioned in England or by the local governors under express instructions from the mother
country (as to protect judges from arbitrary removal by the governors).25 Prior to the
21 According to Shetreet and Turenne, ‘It clearly appears that the Act of Settlement did not exclude the power to
impeach judges. The object of the Act, which was entitled in part ‘an Act for the further limitation of the Crown’,
was to secure the independence of the judges of the Crown but not to render them independent of Parliament
or to restrict the powers of Parliament over them. Apart from this, it would be unsound to believe that at a time
of struggle for power between Parliament and the Crown, Parliament would give up a strong and ecient
power over judges (which enabled Parliament not only to remove a judge or disqualify him from public oce
but also to sentence him severely) merely in order to assume the milder power of removal by address.’ See:
SHETREET, Shimon; TURENNE, Sophie Turenne. Judges on trial: the independence and accountability of the
english judiciary. 2.ed. Cambridge: Cambridge University Press, 2013. p. 314-315.
22 SHETREET, Shimon; TURENNE, Sophie Turenne. Judges on trial: the independence and accountability of the
english judiciary. 2.ed. Cambridge: Cambridge University Press, 2013. p. 310.
23 HATSELL, John. Precedents of the proceedings in the House of Commons: with observations. v. 4. London:
Hansard and Sons, 1818. p. 483-486.
24 CAIRD, Jack Simson. Impeachment. House of Commons Library Brieng Paper n. CBP7612 6/2016 <https://
commonslibrary.parliament.uk/research-briengs/cbp-7612/>. Accessed 23 January 2021.
25 FEERICK, John D. Impeaching federal judges: a study of the constitutional provisions. Fordham Law Review,
New York, v. 39, n. 1, p. 1-58, 1970, p. 13.
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American Revolution, colonists and the Crown struggled around judges’ tenures: whi-
le colonists insisted upon tenures during good behavior, the British prevailed issuing
commissions during the pleasure of the Crown. It is not a surprise, though, that Jeer-
son’s Declaration of Independence in 1776 charged King George III to the following: ‘He
has made Judges dependent on his Will alone, for the tenure of their oces, and the
amount and payment of their salaries’.
After the American Revolution, discussions about impeachment played a key role in
the new country. Both in Philadelphia during the Constitutional Convention and later
in the ratication process of the Constitution, the framing of the new government had
to address and encompass instruments to incentivize and guarantee the accountability
of public ocials. That is when impeachment came to play in the United States Cons-
titution, as Article II, Section 4 provided that ‘the President, Vice President and all civil
Ocers of the United States, shall be removed from Oce on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors’.
During the Constitutional Convention in Philadelphia, Massachusetts delegate El-
bridge Thomas Gerry famously urged the necessity of impeachments. According to Ja-
mes Madison’s notes on the debates in the Federal Convention, Gerry expressed that
‘a good magistrate will not fear them. A bad one ought to be kept in fear of them’.26
Also during the Federal Convention, it is interesting to notice that the impeachment
of Warren Hastings, Governor General of India, was underway in the British Parliament
and inuenced the thinking of those in Philadelphia.27 Of all the newly independent
States represented in the Convention only Massachusetts and South Carolina voted
against the idea of placing impeachments within the Constitution. As pointed by Max
Farrand on his classic account of the Constitutional Convention, only Rufus King (from
Massachusetts), Gouverneur Morris (Pennsylvania) and Charles Pickney (South Caroli-
na) “argued against it, unless the executive were to be appointed for life or were to be
given too extensive powers”.28
After establishing impeachment as a necessary feature for the newly created gover-
nment structure, the Constitutional Convention went on to discuss whether impeach-
ments would be tried by the Judiciary (at the Supreme Court) or by the Legislative itself.
According to Farrand, the delegates to the Convention were aware of the practice that
granted to the Legislative the sole power of impeachments.29
26 FARRAND, Max. The records of the Federal Convention of 1787. v. 2. New Haven: Yale University Press,
1911. p. 58.
27 VOLCANSEK, Mary L. British antecedents for U.S. impeachment practices: continuity and change. The Justice
System Journal, Philadelphia, v. 14, n. 1, p. 40-62, 1990, p. 41.
28 FARRAND, Max. The framing of the Constitution of the United States. New Haven: Yale University Press,
1913. p. 118.
29 FARRAND, Max. The framing of the Constitution of the United States. New Haven: Yale University Press,
1913. p. 130-131.
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Focusing on judicial ocers, Alexander Hamilton pointed that judicial independen-
ce was a key factor leading up to the tenures during good behavior.30 As stated in The
Federalist n. 78, ‘the standard of good behavior for the continuance in oce of the judi-
cial magistracy, is certainly one of the most valuable of the modern improvements in
the practice of government. In a monarchy it is an excellent barrier to the despotism
of the prince; in a republic it is a no less excellent barrier to the encroachments and
oppressions of the representative body. And it is the best expedient which can be de-
vised in any government, to secure a steady, upright, and impartial administration of
the laws’.31 As for judicial accountability and judges’ responsibility, Hamilton expressed
in The Federalist n. 79 that ‘the precautions for their responsibility are comprised in the
article respecting impeachments. They are liable to be impeached for malconduct by
the House of Representatives, and tried by the Senate; and, if convicted, may be dis-
missed from oce, and disqualied for holding any other. This is the only provision on
the point which is consistent with the necessary independence of the judicial charac-
ter, and is the only one which we nd in our own Constitution in respect to our own
judges’.32
In light of the British precedents and Hamilton’s powerful pen, the US Constitution
gave the House of Representatives the sole power of impeachment and the Senate the
sole power to try all impeachments of all civil ocers of the US.33 The new impeach-
ment framework in the United States of America paved the way for several proceedings
at the federal level during the last 234 years, including the impeachment of three pre-
sidents, one Supreme Court Justice and at least fourteen federal judges.34 The United
States, thus, became the primary source of impeachment for the last two centuries;
more than that, the country followed the British legacy and spread the institution of
impeachment around the world.
3. Judicial impeachment in the United States of Ame-
rica
The rst question that arises about impeachments under the United States Consti-
tution is the following: what is the scope of impeachable ocials according to Article II,
30 Article III, Section 1 of the US Constitution provides that ‘Judges, both of the supreme and inferior Courts,
shall hold their Oces during good Behaviour.’
31 KESLER, Charles R. (Org.). The federalist papers. New York: Signet Classics, 2003. p. 464.
32 KESLER, Charles R. (Org.). The federalist papers. New York: Signet Classics, 2003. p. 472-73.
33 With that in mind, the delegates to the Constitutional Convention crafted what is now Article I, Section 2,
Clause 5 and Article I, Section 3, Clause 6 of the Constitution of the United States: The House of Representatives
shall chuse their Speaker and other Ocers; and shall have the sole Power of Impeachment / The Senate shall have
the sole Power to try all Impeachments.
34 Three others resigned before completion of impeachment proceedings. See: <https://history.house.gov/
Institution/Impeachment/Impeachment-List/>. Accessed 23 July 2021.
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Section 4 of the Constitution, which reads: The President, Vice President and all civil O-
cers of the United States, shall be removed from Oce on Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and Misdemeanors.
Following a strict textual argument, it is safe to say that Article II of the Constitution
encompasses the Executive Power. Thus, its Section 4 should only apply to those o-
cers of the United States under the Executive branch. By the same reasoning, Article
3, Section 1 of the Constitution states that The Judges, both of the supreme and inferior
Courts, shall hold their Oces during good Behaviour. No mentions to impeachments are
found in Article 3 of the Constitution when it deals with the Judiciary.
Despite this preliminary (and supposed) contradiction, any historical account of the
Constitutional Convention and its debates reveals what was behind the minds of the Fra-
mers of the Constitution when it comes to judicial impeachment. As pointed by Michael
J. Gerhardt, there were no debates addressing the meaning of the phrase “civil ocers of
the United States”. In fact, “even though the Constitution does not expressly refer to the
removal of federal judges, the constitutional convention assumed, The Federalist Papers
expressly acknowledged, and the federal government has acted from its inception as if
‘all civil ocers of the United States’ subject to impeachment includes federal judges”.35
Raoul Berger, one of the leading scholars on the subject of impeachment in the
United States of America, states that “the almost absent-minded inclusion of judges
among ‘civil ocers’ undercuts the assumption that the Framers designed impeach-
ment to enforce judicial ‘good behavior’”.36 On the contrary, there was no planned link
between impeachment and the good behavior standard of Article 3, Section 1, as no
civil ocers except for judges had their tenures associated and attached to such a stan-
dard. In truth – and according to Berger’s explanation about the issue of impeachment
during the Constitutional Convention – “the paramount concern with impeachment
of the President had all but crowded out thought of removal of Justices […]”. In other
words, the link between impeachment and good behavior of judges was not debated
at the Convention, as judges were considered impeachable ocers along all other civil
Ocers of the United States.
The enactment of the Constitution and its impeachment framework sparked ano-
ther debate: does Congress have the power to provide for the removal of federal jud-
ges through means other than impeachment? Though this may be an almost endless
debate until today, the idea that the basic impeachment framework within the Cons-
titution is the only way to remove a federal fudge is appealing. For James E. Pfander,
this issue can be solved by the showing “that the framers of the Constitution consis-
tently expressed the view that impeachment provided the only way to remove a federal
35 GERHARDT, Michael J. The federal impeachment process. Chicago: The University of Chicago Press, 2019.
p. 77.
36 BERGER, Raoul. Impeachment: the constitutional problems. Cambridge: Harvard University Press, 1999. p. 154.
Impeachment of judges: a brief historical and comparative analysis between
Brazil and the United States of America
Re v. Eurolat in. de Der echo Adm ., San ta Fe,vol. 9, n. 1, p. 25-41, e ne./jun. 2022. 35
judge”.37 More than that, Pfander argues that “the Constitution itself follows the domi-
nant state pattern, assigning the task of removing federal judges to the Senate after
and impeachment trial and thereby implicitly but unavoidably foreclosing alternative
methods of removal”.38 Following the same path in his constitutional and historical
analysis of the federal impeachment process, Michael J. Gerhardt notes that “any pro-
posal for subjecting federal judges to removal at the whim of the president or Congress
through some means other than impeachment plainly violates immutable principles of
separation of powers limiting the political branches’ removal of federal judges”.39
The Supreme Court of the United States never addressed the question with full
force, but some argue that its judgement in United States ex rel. Toth v. Quarles, 350
U.S. 11 (1955) shows how the Court thinks about the uniqueness of impeachment for
the removal of judges. Writing for the Court in that case, Justice Hugo Black stated
that “courts are presided over by judges appointed for life, subject only to removal by
impeachment”.40
Dissenting from this idea and based on Raoul Berger’s view of the matter, Irving R.
Kaufman says that “it is constitutionally permissible to establish a removal procedure
other than impeachment for judges whose conduct falls in the substantive gap betwe-
en ‘high Crimes and Misdemeanors’ and violations of ‘good Behaviour’”.41 In fact, Berger
himself expresses that it is open to Congress pass legislation under the ‘necessary and
proper’ clause “which would give eect of the implications of ‘good behavior’ and con-
rm and facilitate judicial removal of judges for ‘misbehavior’”.42
When serving as a representative for the State of Michigan, former United States
President Gerald R. Ford worked hard to impeach then-Justice William O. Douglas. Du-
ring his attempt at the House of Representatives as a minority leader, Ford became
famous for two phrases. At rst, after asking himself what would be an impeachable
oense, Ford declared that “an impeachable oense is whatever a majority of the House
of Representatives considers it to be at a given moment in history; conviction results
from whatever oense or oenses two-thirds of the other body considers to be su-
ciently serious to require removal of the accused from oce”.43 Secondly, Ford stated
37 PFANDER, James E. Removing federal judges. The University of Chicago Law Review, v. 74, n. 4, p. 1227-
1250, 2007, p. 1230.
38 PFANDER, James E. Removing federal judges. The University of Chicago Law Review, v. 74, n. 4, p. 1227-
1250, 2007, p. 1230.
39 GERHARDT, Michael J. The federal impeachment process. Chicago: The University of Chicago Press, 2019.
p. 88.
40 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) 16.
41 KAUFMAN, Irving R. Chilling judicial independence. Yale Law Journal, v. 88, n. 4, p.681-716, 1979, p. 692.
42 BERGER, Raoul. Impeachment: the constitutional problems. Cambridge: Harvard University Press, 1999. p. 154.
43 See Congressional Record at < https://www.congress.gov/bound-congressional-record/1970/04/15/house-
section?s=1&r=224>. Accessed 23 July 2021. As pointed my Michael J. Gerhardt, “Ford’s observation captures
the practical reality of impeachment – that we cannot be sure for what grounds particular ocials may be
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that “judicial misbehavior can be reached by the body politic through one method and
one method only – impeachment”.44
With such statements, Ford sums up that impeachment as a means of removing
unt judges “can only enhance the esteem and condence in which the high court is
held”.45 For him, “what is central to the entire question of impeachment is neither the
privileges and powers of the judicial branch nor the privileges and power of the legisla-
tive branch but the primary interest of the public”.46
Even though it may appear as a contradiction, the legislative capacity for the remo-
val of judges plays a key role when it comes to judicial independence. A brief view of
the Constitution of the United States of America might help explaining these connec-
tions between impeachment and judicial independence.
At rst, the classic thought about judicial independence is well established in the
Constitution. In such a scenario, it provides that judges will have their positions secu-
red (tenure) during good behavior and will receive for their services a compensation
which shall not be diminished during their continuance in oce (Article 3, Section 1).
Only with a minimum security background will judges be able to perform their du-
ties without undue interference from the other branches or even from the citizenry. As
pointed by Philip B. Kurland, “it should be kept in mind that the provisions for securing
the independence of the judiciary were not created for the benet of the judges, but
for the benet of the judged”.47
That said, judicial independence guarantees that a judge will not be threatened for
his decision, no matter how unpopular it may be. The security of tenure provides the
framework in which a judge shall “be certain that disagreeable views will not lead to
personal punishment. Judges should be removable only for the most serious oenses,
and then only by an especially cautious procedure”.48 That is exactly when judicial im-
peachment comes to play in the United States scenario.
In historical terms, the rst judicial impeachment to pass in the House of Represen-
tatives occurred on March 2, 1803, when Judge John Pickering, then District Judge for
the District of New Hampshire, was impeached on charges of intoxication on the bench
impeached until the House has taken action against them. We cannot be condent about whether something
may become the basis for impeachment until it actually has. This is what Ford was saying”. See: GERHARDT,
Michael J. The federal impeachment process. Chicago: The University of Chicago Press, 2019. p. 105.
44 FORD, Gerald R. Impeachment: a mace for the federal judiciary. Notre Dame Lawyer, v. 46, n. 4, p. 669-677,
1971, p. 676.
45 FORD, Gerald R. Impeachment: a mace for the federal judiciary. Notre Dame Lawyer, v. 46, n. 4, p. 669-677,
1971, p. 677.
46 FORD, Gerald R. Impeachment: a mace for the federal judiciary. Notre Dame Lawyer, v. 46, n. 4, p. 669-677,
1971, p. 677.
47 KURLAND, Philip B. The Constitution and the tenure of federal judges: some notes from history. The
University of Chicago Law Review, v. 36, n. 4, p. 665-698, 1969, p. 698.
48 KAUFMAN, Irving R. Chilling judicial independence. Yale Law Journal, v. 88, n. 4, p.681-716, 1979, p. 690.
Impeachment of judges: a brief historical and comparative analysis between
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and unlawful handling of property claims. After that, Pickering faced trial by the Senate,
where he was found guilty and removed from oce. Following Pickering one year later
on March 12, 1804, Associate Justice of the United States Supreme Court Samuel Chase
was impeached by the House on charges of arbitrary and oppressive conduct of trials
while riding circuit.49 Though impeached by the House, Chase was then acquitted on
his Senate trial in what was the only impeachment so far involving a Supreme Court
Justice.
The results of Chase’s impeachment can be noticed until today as his acquittal on a
very partisan judgement, according to Richard B. Lillich “limited the Congressional che-
ck of impeachment and thus insulated the judiciary from any substantial direct control
by the other branches of government. A contrary result would most certainly have pre-
cluded the free and independent judiciary existing today”.50 In any sense, the result was
also a key factor for the improvement of the manners of federal judges regarding purely
political issues, as “federal judges subsequently refrained from active participation in
politics”.51 Judicial independence, thus, gained momentum, as one needs mechanisms
to debug the judicial system and impeachment (even with its aws) was one of those
mechanisms (the most extreme in the system, for sure).
Finally, the last judicial impeachment within the federal judiciary occurred on Mar-
ch 11, 2010, when Judge G. Thomas Porteous Jr., then District Judge for the Eastern
District of Louisiana, was impeached on charges of accepting bribes and making false
statements under penalty of perjury. Porteous Jr. was tried by the Senate, where he was
found guilty, removed from oce and disqualied from holding any future oces in
government.
4. THE CASE OF BRAZIL
As for Brazil, the Constitution of 1824, the rst after independence from Portugal,
established a constitutional monarchy whose head of government was the Brazilian
Emperor himself, aided by a group of ministers. Though the Emperor had full sovereign
immunity (rex non potest peccare, or the king can do no wrong), his ministers could be
49 According to Adam A. Perlin, “In the nineteenth century, Supreme Court Justices were required to ride the
circuit, hearing lower courts‟ cases in addition to their own caseload at the Supreme Court. In 1800, while
riding the circuit, Chase delivered three of the most vilied decisions of his career, two of which involved
the enforcement of the Sedition Act of 1798.29 That same year, Chase refused to dismiss a grand jury until
he had been satised that the grand jurors were not trying to protect a seditious printer.30 Then, in 1803,
Chase delivered a controversial grand jury charge in Baltimore.31 These acts formed the bases of the articles
of impeachment against Chase”. See: PERLIN, Adam A. The impeachment of Samuel Chase: redening judicial
independence. Rutgers Law Review, v. 62, n. 3, p. 725-789, 2010, p. 732-733.
50 LILLICH, Richard B. The Chase impeachment. The American Journal of Legal History, v. 4, n. 1, p. 49-72,
1960, p. 49.
51 LILLICH, Richard B. The Chase impeachment. The American Journal of Legal History, v. 4, n. 1, p. 49-72,
1960, p. 71.
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held responsible for treason, bribery, abuse of power and other oences (Articles 133).
These oences often embraced criminal and political proceedings, but formally spe-
aking there was no impeachment during the Brazilian Empire.
The very rst Brazilian Constitution established in its article 134 that the law would
specify the nature of these ministers’ oenses and the way to proceed against them.
Following that guideline, on October 15, 1827, such law was approved. It dealt with the
responsibility of Ministers, Secretaries and Councilors of the State. The law provided in
its article 8º that, pursuant to the Constitution, every citizen would be able to present
charges and denounce Ministers, Secretaries and Councilors of the State within three
years of the alleged misconduct. These charges would be directed to the lower House
for examination and, if accepted, the State authorities would be tried by the upper Hou-
se (in a proceeding similar to those of American and English impeachments).
During the entire Brazilian Empire (from 1822 until 1889), the Constitution of 1824
was the law of the land. As for judges’ tenures and responsibilities, it provided that ju-
dges would have life tenure (Article 153). Despite that, the Emperor had the power to
suspend them, preceding the hearing of the same Judges of the Council of State (Arti-
cle 154). But the judges would only be removed from oce after a judicial trial with a
nal decision (Article 155).
After a military coup d’etat that established the First Brazilian Republic and over-
threw the constitutional monarchy in 1889, the new Brazilian Constitution of 1891, whi-
ch was heavily modeled under the United States Constitution, ocially brought impe-
achment to the ‘United States of Brazil’.52 The rst Brazilian Constitution after the end of
monarchical regime followed most of the basic principles and core ideas of the United
States Constitution, for example: (i) a presidential republic; (ii) federalism; (iii) no state x
church relations; (iv) a bill of rights; (v) separation of powers; (vi) a legislative with two
branches; (vii) life tenure for justices of the Supreme Court; (viii) impeachment.
The 1891 Constitution provided for the impeachment of the President of the United
States of Brazil in the so called “responsibility crimes” (Article 53 and 54). It also provided
that these crimes would be dened in a special (along with the proceedings for accu-
sation and judgements). Repeating the former Constitution of 1824, ordinary federal
judges were not formally subject to impeachment procedures under the 1891 Cons-
titution; they had life tenure and would be removed from oce only after a nal and
unappealable court order (Article 57). But the 1891 Constitution, in its Article 57, §2º,
excepted Supreme Court judges from that framework, as they were subject to impea-
chment in the above mentioned “responsibility crimes”. Formally speaking, it was the
rst time judges were expressly subjected to impeachment in the Brazilian legal history.
52 Formally speaking, “The United States of Brazil” was the name of the country under the 1891 Constitution.
Impeachment of judges: a brief historical and comparative analysis between
Brazil and the United States of America
Re v. Eurolat in. de Der echo Adm ., San ta Fe,vol. 9, n. 1, p. 25-41, e ne./jun. 2022. 39
Impeachment in Brazil followed pretty much the same US standards and it was
maintained in the next ve Constitutions until today (1934, 1937, 1946, 1967 and 1988).
Beyond the general principles of impeachment regulated by the Constitution, the cur-
rent law in Brazil (Federal Law n. 1.079/50) has specic provisions regulating the res-
pective trial procedures. Other than the President and Ministers, the law provides for
the impeachment of Supreme Court Justices, which are, until today, basically the only
judges in Brazil subject to impeachment.
Federal Law n. 1.079/50 reinforced the idea that Supreme Court judges in Brazil are
the only ones subject to impeachment. Along with these particular judges, the law also
provided for the impeachment of the Attorney General of the Republic (Article 1º). Ac-
cording to the law, judges of the Supreme Court were subject to the following charges:
1) irregular alteration of a decision or opinion already rendered in a session of the Court;
2) failing to recuse or disqualify themselves in any proceeding in which their impartia-
lity might reasonably be questioned; 3) exercising political activity; 4) being patently
reckless in fullling the duties of the job; 5) proceeding in a manner incompatible with
the honor, dignity and decorum of their functions. In the year 2000, Federal Law n.
10.028 provided another cause for impeachment of Supreme Court judges: budgetary
irregularities when in the presidency or administration of the Court.
As for the procedures of judicial impeachment in Brazil (Articles 41 to 73 of the Fe-
deral Law n. 1.079/50), the main dierence to the other civil ocers subject to it (in
Brazil) and to the other models of impeachment from abroad is where the procedure
starts. In fact, any citizen is allowed to present impeachment charges against a Supre-
me Court judge before the Senate (and not before the “Câmara dos Deputados”, the
Brazilian lower house). Once examined by a Senate Special Committee designated by
its presidency and accepted preliminarily for deliberation in the Senate oor, the im-
peachment will be ocially initiated and will continue within the same Senate for its
nal judgment (also according to Article 52, III, of the current 1988 Constitution). Thus,
judicial impeachment in Brazil consists of a unicameral procedure instead of a traditio-
nal bicameral one.
Even after several attempts to initiate impeachment against Supreme Court jud-
ges in Brazil, there is no precedent for such procedures. In the records of the Senate
(the upper house of the legislative branch, where the proceedings shall be initiated
and tried), there is no history of any preliminarily acceptance by the Senate or even of
any designation of Senate Special Committees for the matter. With the rise of secta-
rian partisanship in Brazilian politics in the last years, there were several impeachment
complaints addressed to the Senate, but none of them were referred for further pro-
ceedings by the Senate presidency and its board members. Taking into consideration
the Senate bylaws and the precedents of the “Supremo Tribunal Federal” (the Brazilian
Supreme Court), it is well established that the President of the Senate, along with the
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Senate board members, may decide about the preliminary acceptance of an impeach-
ment complaint and reject it if they feel that it is patently inept or lacking just cause.53
As already mentioned, there is no history of such preliminary acceptance of a judicial
impeachment so far.
What is clear, though, is that the worldwide focus on impeaching members of the
executive branch rather than judicial ocers ends up pushing aside more research on
judicial impeachment. That is exactly what this Article wants to address and uncover:
the impeachment of judges and judicial independence in a comparative framework. In
that sense, the former United States President Gerald R. Ford clearly explains why these
impeachment procedures may be of great importance for judicial independence and
even for the citizenry: “if the duty of the courts is to protect citizens from bad laws, it is
equally the duty of the Congress to protect them from bad judges”.54
In a nutshell, further studies about judicial impeachment in Brazil (with an obvious
focus on our Supreme Court) may renew and reveal its usefulness in promoting judi-
cial eciency, fairness, independence and accountability. As put by John Nichols in the
American context, the same is true to the Brazilian one: it is time to renew the familiarity
of the people not merely with the concept of impeachment, “but with its glorious po-
tential to serve as the truest corrective of abuses of constitutional power, and the surest
weapon in the defense of the republic”.55
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