By William Hornbeck, ACLR Blog Editor
On October 3rd, 2005, John Roberts ascended the bench for his first day as Chief Justice. To the surprise of many observers, he abandoned the robe with golden stripes that his predecessor and former boss William Rehnquist had introduced. But at the same time that he returned to the plain black robe of Rehnquist’s predecessors, Chief Justice Roberts left unaltered a different distinguishing feature that another prior Chief Justice had introduced. He kept the formal title used by the last 12 Chief Justices of “Chief Justice of the United States,” rather than return to the title “Chief Justice of the Supreme Court of the United States,” which had been used by Chief Justices from Jay to Chase. In doing so, he preserved a little-known legacy of aggrandizement and politicking that the Supreme Court should not be entirely comfortable with. Chief Justice Roberts should restore the Chief Justice’s official title to “Chief Justice of the Supreme Court of the United States.”
The Chief Justice is the only judge specifically mentioned in the Constitution, which provides that “the Chief Justice shall preside” over impeachment trials of the President.1 This reference to the Chief Justice leaves open the question of what the Chief Justice’s official title should be. While the Federalist Papers refer to the “Chief Justice of the Supreme Court,”2 Washington’s commission of John Jay as the first Chief Justice refers to Jay as “Chief Justice of the Supreme Court of the United States.”3 The title of “Chief Justice of the Supreme Court of the United States” passed to Jay’s successors John Rutledge, Oliver Ellsworth, John Marshall, and Roger Taney. When Salmon Chase became Chief Justice under President Lincoln, he initially adopted the title of his predecessors. But in 1866, Salmon Chase requested that Congress refer to his office as “Chief Justice of the United States” in the U.S. Code, and Congress complied.4
The change in title reflected the change in personality that came with Salmon Chase’s appointment as Chief Justice. Salmon Chase made his name as an anti-slavery lawyer, and quickly became prominent in politics with the anti-slavery parties of the 1840s and 1850s: the Liberty Party, the Free-Soil Party, and finally the Republican Party.5 He became a Senator from and then Governor of Ohio, and was one of the leading Republican candidates for President in 1860. When he lost the nomination to Abraham Lincoln, he agreed to serve in Lincoln’s Cabinet as Secretary of the Treasury. Although Chase made an effective Treasury Secretary, he was a constant thorn in Lincoln’s side, frequently offering his resignation to force Lincoln (who could ill afford to lose his Treasury Secretary in the middle of the Civil War, either politically or practically) to take Chase’s side on a disputed issue. But to Lincoln, nothing about Chase was more irritating than Chase’s quest for the Presidency in 1864.
Having lost in 1860 to a man whom he considered less qualified than himself to be President, Chase was unwilling to step aside to allow Lincoln (who was still his boss) to run for a second term without opposition from inside his party. What’s more, in contrast to the statesmen of the time, who pretended not to pursue the Presidency while nurturing the most ardent desire to occupy the White House, Chase was relatively open about his ambitions. When Chase’s campaign eventually collapsed in early 1864, Lincoln might have expected a change in tone from his Treasury Secretary. But in June of 1864, Chase again offered Lincoln his resignation over a patronage dispute he was having with Thurlow Weed.6 Realizing that he no longer needed Chase to manage the finances of a war that was nearing its end, Lincoln accepted Chase’s resignation offer.
Having expected Lincoln to reject his resignation offer, Chase unexpectedly found himself out of a job. But when Roger Taney died in October 1864, Lincoln and Chase saw a way to resolve their problems to the benefit of both. Lincoln would appoint Chase to be Chief Justice because Chase was a solid Republican who would likely shape the Court in favor of the rights of freedmen and the national government. Lincoln might also have hoped that putting Chase in a judicial role would remove him from politics. If Lincoln did think this, he was mistaken. Chase saw his appointment as Chief Justice as a perfect opportunity to stay on the national scene in preparation for a run at the Presidency in 1868.7 Unfortunately, the position of Chief Justice was (as Lincoln might have calculated) a less visible position than Treasury Secretary. As Treasury Secretary, Salmon Chase had put his likeness on every greenback printed during the war. But no matter how many important opinions Chase authored as Chief Justice, the national newspapers would likely devote more coverage to the Republicans in the political branches. It was in this context that Chief Justice Chase changed his official title from “Chief Justice of the Supreme Court of the United States” to “Chief Justice of the United States.”8
The historical evidence does not make it clear why Chief Justice Chase changed his title.9 The popular explanation used to be that Chase changed his title to emphasize his role as a non-partisan figure in Andrew Johnson’s impeachment trial.10 But this is impossible: Chase requested that Congress change his title in 1866, two years before Johnson’s impeachment. Another explanation, listed in the Wikipedia entry for “Chief Justice of the United States” without any cites to authority, is that Chase was trying to “emphasize the role of the Court as a coequal branch of government.”11 But it is unclear why a change from the old title to the new would emphasize that the Court was a coequal branch: Congress is run by people whose titles (e.g., Speaker of the House, Senate Majority Leader) clearly identify that their authority is over their branch, not the United States as a whole.
The likeliest explanation, in light of the circumstantial evidence of Chase’s presidential ambitions, is the one given by Justice Stevens in his memoir— that Chase was “probably . . . motivated by the hope that he would one day be elected president.”12 This would also explain why Chase adopted a title whose scope matched the President’s, rather than keep a title that would at most convey the equality of the Court to the political branches.
Ultimately, changing the title did Chase no good: he lost his bids to be the nominee of the Democratic and Republican parties in 1868, and of the Liberal Republican party in 1872. Chase died in 1873 as Chief Justice of the United States, and his successors have all used the title Chase introduced. Chase’s constant quest for the Presidency tarnished his reputation: a man who was in many ways more gifted than Abraham Lincoln is instead remembered as a 19th-century Harold Stassen.13 Whatever the merits of Salmon Chase as a person, the title he introduced does not merit further use. To promote the “first among equals” principle, to demonstrate his commitment to the principles of federalism, and to remove the historical taint of the current title, John Roberts should restore his title to “Chief Justice of the Supreme Court of the United States.”
Matching the Associate Justices
Restoring the original title of “Chief Justice of the Supreme Court of the United States” would vindicate the important principle that the Chief Justice is “first among equals.”14 This principle promotes goodwill among the justices: Chief Justice Burger earned the annoyance of his colleagues by abusing the Chief’s assignment prerogative,15 and Chief Justice Rehnquist annoyed the Associate Justices by adding gold stripes to his robe after being elevated to Chief Justice.16 Chief Justice Roberts showed his dedication to the “first among equals” principle on his first day as Chief Justice by abandoning the gold stripes that Chief Justice Rehnquist had added.17 While the Chief Justice’s title is more subtle than gold stripes, it still unduly sets him apart from his colleagues and goes against the “first among equals” principle.
It might be argued that the Chief Justice is in essence the supervisor of the federal judiciary, and that his title should reflect this. The Chief Justice does serve on several supervisory boards (e.g., the Judicial Conference of the United States), and appoints members of several courts (e.g., the Foreign Intelligence Surveillance Act courts). But these additional responsibilities do not justify a difference in title. The Speaker of the House has many additional responsibilities besides her duties as a voting18 member of Congress (e.g., committee assignments and office assignments), and yet her title clearly reflects her institutional responsibilities. The same is true, to a lesser extent, for the Senate Majority Leader. It is true that the President is the “President of the United States.” But unlike the Chief Justice, the President does not serve in a multimember body where he is supposed to be “first among equals.”19 Indeed, it is difficult to imagine what the President could be President of, if not the United States— “President of the Executive Branch”? “President of the United States in Congress assembled”? The Chief Justice does not represent the United States— his title should not create this false impression, and should match the title of his brethren.
Restoring the title of “Chief Justice of the Supreme Court of the United States” would reinforce Chief Justice Roberts’ dedication to the principles of federalism. While Chief Justice Roberts is not as closely associated with federalism as Justice Kennedy or Justice O’Connor, his recent opinions show his genuine commitment to the federalism revolution that started under Chief Justice Rehnquist.20Certainly Chief Justice Roberts has always recognized the principle that the Supreme Court is powerless to review issues decided by state courts that constitute adequate and independent state grounds.21 While it is ultimately up to the Supreme Court to decide whether a state court’s decision rests on adequate and independent state grounds, the Chief Justice’s official title should reflect the principle of deferring to state courts on matters of state law, not the raw power that allows the Court to ignore this doctrine when it wants.22 Restoring the title to “Chief Justice of the Supreme Court of the United States” would send a message that the Chief takes the principles of federalism seriously, and would avoid any implication that the Chief Justice has plenary power over state courts.
It might be argued that the Chief Justice’s title reflects the change in our federalist structure that the postwar amendments wrought. According to this argument, it was perfectly appropriate for antebellum Chief Justices to call themselves Chief Justice of the Supreme Court of the United States because the states were by and large the guarantors of their citizens’ fundamental liberties.23 But after the postwar amendments were passed, the Supreme Court was made responsible for protecting United States citizens against deprivations of their liberties by the federal government or the state governments.24 This increase in the Court’s responsibilities would thus justify a change in the Chief Justice’s title.25This argument has some innate appeal because Salmon Chase changed the title in 1866, in the middle of the Radical Republican efforts to reshape the constitutional framework. The fact that Salmon Chase was a strong supporter of the Radical Republicans, from his antebellum days as a Republican Governor and Senator to his days in Lincoln’s cabinet to his dissent from the Supreme Court’s neutering of the expansion of federal power in the Slaughter-House Cases,26 also lends credibility to this argument.
But not only is there no evidence that Salmon Chase was actually motivated by a desire to promote a new constitutional framework, a change from “Chief Justice of the Supreme Court of the United States” to “Chief Justice of the United States” does not accomplish its purported goal of reflecting the postwar constitutional framework, and a return to “Chief Justice of the Supreme Court of the United States” would not return the Court or the country to the days of Barron v. Baltimore. Although the postwar amendments expanded the Supreme Court’s jurisdiction to allow the Court to protect against state intrusions on personal liberty, the amendments did not change the Supreme Court’s institutional structure. The distinction between “Chief Justice of the Supreme Court of the United States” and “Chief Justice of the United States” turns on who the Chief Justice is (is his domain the Supreme Court or the United States), not what the Court is responsible for. A Chief Justice of the Supreme Court of the United States would have exactly the same powers and responsibilities as a Chief Justice of the United States, but would have a title that correctly states the Chief Justice’s institutional role.27
Removing the Historical Taint
Restoring the original title would communicate an important message about the Court’s role in politics. The history of justices running for political office from the bench has occasionally been positive, as was the case with Charles Evans Hughes, but has largely been negative (John McLean, Bill Douglas). The Court has sometimes self-corrected when the political ambitions of its members caused self-inflicted wounds: Salmon Chase’s activities in the 1868 and 1872 elections caused his successors Morrison Waite and Melville Fuller to avoid political entanglements.28 On some occasions, the political activities of the Court have led to pushback from the public— Justice Douglas’ attempts to get on the Democratic ticket in 1940, 1944 and 1948 led the American Bar Association to propose a constitutional amendment restricting the ability of judges to run for political office.29 Textually, a shift from “Chief Justice of the United States” to “Chief Justice of the Supreme Court of the United States” would not indicate a rejection of politics. But given the fact that the 1866 switch was probably intended to allow Chief Justice Chase to run for political office from the bench, a switch back would communicate that this digression was ill-advised, and the Court will not involve itself in politics as it has occasionally done throughout its history.30
As nitpicky as a debate over the Chief Justice’s official title might seem, changing the title would covey the Chief Justice’s commitment to several important principles, without any conceivable drawbacks. John Roberts has always been keen on maintaining and improving the Court’s public image: changing his title31 is a costless way to earn additional public support for the Court without making any substantive case law or expending judicial resources. The Chief Justice should restore his official title to “Chief Justice of the Supreme Court of the United States,” as it was when John Marshall was Chief Justice.32