How to rein in a Supreme Court? No one has done it like West Virginia

A rug sits in the office of the West Virginia Supreme Court of Appeals during a tour on Aug. 6, 2018. The office tour was part of the W.Va. Supreme Court impeachment hearings. (Perry Bennett | West Virginia Legislative Photography)

What if, when it comes to the U.S. Supreme Court, Democrats in the U.S. Senate took a lesson from West Virginia Republicans?

Now there was a group of legislators who knew how to rein in a Supreme Court, and not let much of anything get in their way.

As most readers will know, the ability of two U.S. Supreme Court Justices, Clarence Thomas and Samuel Alito, to fairly adjudicate cases has been called into significant question.

A flag was flown at Alito’s home around the time of President Joe Biden’s inauguration. The flag is associated with the movement that wrongly maintains that the 2020 election was rigged. Another flag associated with the movement was flown at Alito’s beach house. He has blamed his wife. More recently, Alito was secretly recorded at an event saying the conflict between the political left and right might be unbridgeable, and “one side or the other is going to win.”

Thomas has received numerous lavish gifts from a right-wing billionaire, and didn’t declare them until they were publicly revealed years later. His wife has been part of the effort to overturn the 2020 election.

U.S. Senate Democratic leaders, especially Senate Judiciary Chairman Dick Durbin of Illinois, have been under pressure to aggressively confront the justices on their ethical quandaries. But Durbin recently told The New York Times that the court is “a separate branch of government and has its own authority. There are precedents as to what we can and cannot do.”

Lots of Democrats are frustrated by this approach. But it may be useful to remember what happens when a legislative body goes too far the other way, and decides it’s going to clean judicial house come hell or high water.

Six years ago, West Virginia Republicans were not much worried about precedents. To this end, they impeached the entire state Supreme Court — the only time in American history that has happened.

At the time, three of the five justices — Margaret Workman, Robin Davis and Menis Ketchum — had been elected as Democrats. Another justice, Allen Loughry, was elected as a Republican. The fifth justice, Beth Walker, won after the state switched to nonpartisan judicial elections, but she had previously run (and lost to Workman and Ketchum) as a Republican.

News reports about outsized spending by state justices circulated for months. Loughry was removed by his colleagues as chief justice after he fired the court’s administrator and asked for a federal investigation. That idea backfired spectacularly on Loughry, as a federal grand jury eventually indicted him on 22 charges. He ended up convicted on 10.

Similarly, Ketchum was charged with federal wire fraud because he used a state vehicle and credit card when he went on a personal golf outing. He pleaded guilty to one felony charge, and was fined and put on probation.

Ketchum resigned one day before the House of Delegates started impeachment proceedings. But on Aug. 7, 2018, House Judiciary Committee members recommended that the other four justices be impeached. Loughry had already been federally indicted, but the charges against the other three mostly involved spending on office décor and pay for senior status judges.

Six days later, the House agreed to impeach the four justices. Davis resigned that day, slamming lawmakers for their actions.

Imagine, just for a moment, congressional Democrats impeaching the entire U.S. Supreme Court because of “an atmosphere of entitlement” among the justices.

That was what then-House Judiciary Chairman John Shott said after his committee recommended the impeachment of the entire state court. (Shott also referred to the “cavalier disregard” of the justices in their spending of taxpayer money, but it’s safe to say that if a justice had received millions of dollars secretly from a donor, that would have been a larger concern.)

Walker was acquitted at her impeachment trial. Workman sued over hers, claiming that the legislative shenanigans violated the separation of powers, and a group of circuit judges sitting as a temporary Supreme Court agreed with her.

But ultimately, Republicans got what they wanted. With Davis and Ketchum gone, Gov. Jim Justice was able to appoint Republican jurists — and not just any Republican jurists. The positions were taken by former House of Delegates speaker Tim Armstead (who remains on the court) and Evan Jenkins, who left his congressional seat for the court appointment.

At his press conference with Armstead and Jenkins, Justice said, “What we need to do more than anything is repair, move on and show the nation how committed we are as West Virginians to have a solid court and, in my opinion, without any question, a conservative court.”

Again, imagine if Dick Durbin or Chuck Schumer said America had lost faith in the Supreme Court, and that one of their goals was to replace right-wing justices with left-wing ones.

No one is seriously suggesting that national Democrats should follow the 2018 West Virginia Republican plan of nuking the entire court. But there’s an awful lot of middle ground between that and what the Democrats are doing now.

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