Abstract

During the previous Congress, some commentators called on the Senate Judiciary Committee, then controlled by Democrats and chaired by Senator Dick Durbin of Illinois, to demand the testimony of Supreme Court Justices Clarence Thomas and Samuel Alito over allegations of ethical breaches, securing their presence by subpoena if necessary. The Committee did not subpoena the Justices, with Durbin citing the likely lack of sufficient votes and worrying that the Senate would not be able to enforce the subpoenas anyway. During the same Congress, Durbin asked Chief Justice Roberts to testify about judicial ethics, an invitation that Roberts declined.

These incidents naturally raised the question of what, if anything, Congress could do to compel federal judges to comply with its investigative demands. One possibility is contempt: Congressional committees can issue subpoenas, and defying a subpoena can be a contempt of Congress. A congressional committee has subpoenaed a sitting Justice before, namely in 1953, when the House Un- American Activities Committee subpoenaed Justice Tom Clark, albeit for testimony about his activities while serving as Attorney General. Clark did not testify but agreed to answer written questions, and the episode concluded without a direct confrontation over enforcing compliance. There is also impeachment. Presumably Congress could impeach a judge for refusal to respond to what it regards as proper investigative demands. But impeachment being as a practical matter almost impossible, using the contempt power seems more plausible. So has a federal judge, or for that matter a state judge, ever been held in contempt of a legislative body?

Although modern courts and commentators appear to be unaware of the episode, this happened in New York in 1871. I learned of it through Platt Potter’s 1871 American edition of the famous nineteenth-century treatise on statutory interpretation by Sir Fortunatus Dwarris. The first edition of Dwarris on Statutes had been published in London in 1830-31, and a much-abridged version was published in this country in 1835. Potter, a New York state judge of some renown, had undertaken to produce an updated edition of the oft-cited treatise featuring American additions and citations. Among the material Potter added to Dwarris was a chapter about parliamentary privilege and the legislature’s power to punish for contempt. In this chapter Potter addresses whether an American legislature had ever held a judge in contempt. Interested, I looked through the account of this clash of competing legislative and judicial privileges, only to find the accused contemnor in the case that Potter’s treatise described was none other than Judge Platt Potter himself.

This abstract has been taken from body of the article.

Document Type

Article

Publication Date

12-2025

Publication Information

8 Law & History Review / The Docket (Dec. 2025)

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