"Chief Justice of the United States:" History and Historiography of the Title

by Josiah M. Daniel, III


Many Americans, laymen and lawyers alike, do not know the correct and official title of the Supreme Court's primus inter pares: "Chief Justice of the United States." The title is fixed by statute. Congress, in the exercise of its authority to constitute the Court, had provided that "[t]he Supreme Court shall consist of the Chief Justice of the United States and eight associate justices."[1] The matter of the Chief's true title has been surprisingly problematic for a considerable period of our national history.

Although they debated extensively the offices of President and Vice-President, the framers of the Constitution gave little attention to the office of the chief judge of the federal court system. The records of the Constitutional Convention contain a running debate on the necessity for and the scope of federal jurisdiction, but reflect virtually no discussion about the organization and staffing of the third branch of the national government.[2] No doubt the delegates simply drew upon their experience with colonial, and then state, courts. By 1787 a number of the states had named their highest appellate courts "Supreme Courts" and had provided for "Chief Justices" thereof.[3]

On June 4, 1787, early in the Convention, the Committee of the Whole passed favorably on the first clause of Edmund Randolph's ninth resolve; "That a national judiciary be established." Six weeks later the delegates agreed that "One supreme Tribunal" would form the apex of the national judiciary, and on September 7-8 they concluded debate of the judicial proposals by agreeing that the Chief Executive would appoint the judges of the Supreme Court and that the Senate would try impeachments.[4] Without expressly discussing the matter, the Convention's delegates simply assumed that there would be a "Chief Justice" of the "One supreme Tribunal." In the recorded debates the office was mentioned by name only twice: in an unadopted proposal for Council of State[5] and as potential successor to the President in the event of disability.[6]

The resulting document, our Constitution, embodies the Founders' implicit assumption that the Supreme Court would be headed by a "Chief Justice." Surprisingly, Article III, the judicial article, omits to name the office; it refers only to "Judges, both of the supreme and inferior tribunals."[7] Similarly, Article II, the executive article, empowers the President to nominate and appoint "Judges of the Supreme Court."[8] Only in the legislative article, Article I, does the Constitution mention the office, and then obliquely: at an impeachment trial of the President by the Senate, "the Chief Justice shall preside."[9]

The Constitution obviously contemplates that Congress should flesh out the judicial skeleton,[10] and the Judiciary Committee of the First Congress undertook this task. The committee, appointed early in 1789, consisted often members, five of whom had served in the Convention and were presumably acquainted with its intent as to the federal judiciary Oliver Ellsworth prepared a bill which featured, inter alia, a Supreme Court of six judges.[11] As enacted on September 24, 1789, Section One of the First Judiciary Act provided that "the Supreme Court of the United States shall consist of a chief justice and five associate justices.”[12]

President Washington, however, commissioned John Jay on October 5, 1789 under the amplified title "Chief Justice of the Supreme Court of the United States,"[13] and the succeeding six Chiefs—Ellsworth, Marshall, Taney, Chase, and Waite—were likewise commissioned under that ponderous nomenclature."[14] The antebellum Congresses, on the other hand, perpetuated the original statutory title "Chief Justice" through the fluctuations of the Court's membership from six to five in 1801,[15] back to six in 1802,[16] to seven in 1807,[17] to nine in 1837,[18] and to ten in 1863.[19] The legislators also referred to the office by a third designation in several judiciary-related statutes: "Chief Justice of the United States."[20] Thus Congressional legislation and executive usage provided three competing variants of the Chief's title. Although the matter is less than clear, "Chief Justice" should be deemed the official title during this period since it was the designation used in the statutes which constituted the Supreme Court.

The inconsistency remained unresolved in 1866 when the official title was changed to its present style. In that year Chief Justice Salmon P. Chase submitted, sub rosa through Senator Lyman Trumbull, an amendment to a judiciary bill providing that No vacancy in the office of associate justice of the supreme court shall be filled by appointment until the number of associate justices shall be reduced to six; and thereafter the supreme court shall consist of a chief justice of the United States and six associate justices. . . . [21]

The Senate accepted the amendment, Congress passed the bill, and President Andrew Johnson signed it into law.[22] One of Chase's motives for seeking this amendment, now documented, was his personal desire for greater compensation; reducing the number of justices was designed to free the resources necessary to raise the Court's salaries.[23] Chase was commissioned as "Chief Justice of the United States."[24]

No one noticed the insertion of a new official title until 1870, when Senator Charles P. Drake discovered and reported to Congress that "in 1866, doubtless by inadvertence, there crept into an act of Congress an improper and illegal designation of the "Chief Justice of the Supreme Court of the United States." [25] The Act of April 10, 1869, which fixed the Court's membership at nine, had repeated the reformed title.[26] The Senator also found that Chase had so styled himself during the impeachment proceeding in 1868, but he did not learn that the Chief had in fact been the agent of this revision in title. Drake proposed an amendment to a pending bill in order to correct the 1866 and 1869 statutes and to declare that the official title was "Chief Justice of the Supreme Court of the United States." Although the amendment was adopted, the bill died on the table.[27] President Ulysses S. Grant commissioned Morrison R. Waite in 1874 under the title championed by Drake; but, beginning with Grover Cleveland and Melville W. Fuller in 1888, subsequent Presidents have commissioned each of Waite's successors as "Chief Justice of the United States.”[28]

Yet the confusion persisted, and in 1895 William A. Richardson, Chief Justice of the Court of Claims, endeavored to settle the question of the true title by publishing an article entitled "Chief Justice of the United States or Chief Justice of the Supreme Court of the United States?" It was Chief Justice Chase himself who directed Judge Richardson's attention to the subject, as the writer noted.

I remember a conversation with him [Chase] about 1871, in which he called my attention to the question, and said I should find on investigation that the Chief Justice was separate and distinct from the court, that, as he stated it, "the court was built up around the Chief Justice," On account of that conversation and the suggestion he made I thereupon examined the constitution and statutes, and this article embodies the result of my investigation.[29]

Richardson admitted that he could not determine how much Chase had to do with the 1866 and 1869 statutes, but he quite clearly suspected a nexus. After adducing the long executive usage and reviewing the 1866 and 1869 statutes, the judge concluded "that both titles are correct, or that neither is wrong," but he expressed a preference for " Chief Justice of the United States.”[30]

Richardson's article later caught Charles Warren's eye. In his 1923 book The Supreme Court in United States History, Professor Warren remarked in a footnote that "[t]he official title of the Chief Justice seems to have varied at different periods of the Court's history" He listed some, but not all, of the divergent statutes and cited Richardson's article; but, apparently perplexed, he reached no conclusion about the correct title."[31]

Congress too remained uncertain and for a considerable time it failed to use the new title consistently For instance, salary statutes of 1873 and 1911 referred to the "Chief Justice of the Supreme Court of the United States."[32] The codification of the judicial statutes in 1948 eliminated, many inconsistent references in favor of "Chief Justice of the United States,"" but even today traces of the short title "Chief Justice" and of the amplified "Chief Justice of the Supreme Court of the United States" linger in the United States code."[34]

The puzzling origin of the 1866 statutory change remained to be solved by Charles Fair-man, who published the magisterial Reconstruction and Reunion 1864.88, Part One in 1971 as Volume VI of the History of the Supreme Court of the United States series, which is sponsored by the Oliver Wendell Holmes Devise. In Chase's papers in the Pennsylvania Historical Society's archives, Professor Fairman discovered a draft of the 1866 amendment in Chase's handwriting together with correspondence about the matter to the bill’s ostensible sponsor, Senator Trumbull.[35] Fairman thereby established the agency which Richardson had suspected but could not prove.

The Chief Justice of the United States serves not only as the head of the Supreme Court but also as the leader of the entire American judiciary, federal and state.[36] Chief Justice Chase, whatever his personal motive, obtained for the office a title which accurately signifies it dignity and importance.


Endnotes

1. 28 U.S.C. §1 (1976) (emphasis added).

2. 1 M. Farrand, The Records of the Federal Convention of 1787, pp. 22, 220, 232, 243-44, 292 (rev. ed. 1966) [hereinafter cited as M. Farrand]; 2 id. 132, 136, 186, 430-32; 3 id. 600-01.

3. R. Pound, Organization of Courts, pp. 58-103 (1940). The Framers must also have known that a "Chief Justice" had presided over the Court of the King's Bench for centuries. See J. Campbell, The Lives of the Chief Justices of England (1849).

4. 1 M. Farrand, supra n. 2; at p. 95; 2 id. pp. 37, 495.

5. 2 id. pp. 335, 342, 367 ("Chief Justice of the Supreme Court").

6. 2 id. at 427 ("Chief Justice").

7. U.S. Constitution art. 3, § 1.

8. Id. art. 2, § 2, cl. 2.

9. Id. art. 1, § 3, cl. 6 (emphasis added).

10. Id. art 1, § 8, cl. 9; art. 3, § 1.

11. J. Goebel, Antecedents and Beginnings to 1801 at 458-70 (1971) (Vol. I of History of the Supreme Court of the United States); D. Henderson, Courts For A New Nation, p. 10-20 (1971).

12. Act of September 24, 1789, ch. 20, § 1, 1 Stat. 73 (emphasis added).

13. 1 C. Warren, The Supreme Court in United States History, pp. 35, 36 n. 1 (1923) [hereinafter cited as C. Warren]; Richardson, "Chief Justice of the United States or Chief Justice of the Supreme Court of the United States?," 49 New Engl. Hist. & Geneological Reg. pp. 275, 276 (1895) [hereinafter cited as Richardson].

14. C. Warren, supra n. 13, at 11 n. 2; Richardson, supra n. 13, at 276.

15. Act of February 13, 1801, ch. 4, § 3, 2 Stat. 89.

16. Act of March 8, 1802, ch. 8, § 1, 2 Stat. 132.

17. Act of February 24, 1807, ch. 16, § 5, 2 Stat. 420.

18. Act of March 3, 1837, ch. 34, § 1, 5 Stat. 176.

19. Act of March 3, 1863, ch. 100, § 1, 12 Stat. 794.

20. Act of March 3, 1801, ch. 21, § 2, 2 Stat. 111 (relieving duties concerning the mint); Act of February 20, 1819, ch. 27, 3 Stat. 484 (rising salary); Act of August 10, 1846, ch. 176, § 3, 9 Stat. 102 (member of Board of Regents of Smithsonian Institution).

21. C. Fairman, Reconstruction and Reunion 1864-88, PART ONE, p. 166 (1971) (Vol. VI of History of the Supreme Court of the United States) [hereinafter cited as C. Fairman] (emphasis added).

22. Act of July 23, 1866, ch. 210, § 1, 14 Stat. 209.

23. C. Fairman, supra n. 21, at 163-67; see also S. Kutler, Judicial Power and Reconstruction Politics, pp. 54-55 (1968).

24. C. Fairman, supra n. 21, at 163-67, 166. One biographer writes: [Chase had] a confirmed conviction that there was nobody in the country who was quite his equal as a statesman." K. Umbreit, Our Eleven Chief Justices, p. 249 (1938). But the more exalted title brought him no additional prestige because no one apprised the public of it. C. Fairman, supra n. 21, at 171.

25. Cong. Globe, 41st Cong., 2d Sess. 3977 (1870) (emphasis added).

26. Act of April 10, 1869, ch. 22, § 1, 16 Stat. 44. This statute changed the article preceding the title from "a" to "the."

27. Cong. Globe, 41st Cong., 2d Sess. 4864 (1870).

28. C. Fairman, supra n. 21, at 171; Richardson, supra n. 13, at 276, 277, 278.

29. Richardson, supra n. 13, at 278.

30. Id. at 279.

31. C. Warren, supra n. 13, at 11 n. 2.

32. Act of March 3, 1873, ch. 226, 17 Stat. 454; Act of March 3, 1911, ch. 231, § 218, 36 Stat. 1194.

33. The legislative history of the codification does not mention this conformation. H.R. Rep. No. 308, 80th Cong., 1st Sess. 1 et seq. (1947).

34. A review of the United States Code (with the assistance of LEXIS, the computer-assisted legal research service) reveals that "Chief Justice of the United States" is used uniformly except for references to "Chief Justice" in nine sections, 18 U.S.C. § 3771 (1976); 20 id., § 41; 28 id. §§ 3, 5, 674(b), 2072, 2075 and 2076; 50 id. 1802(a)(3); one reference to "Chief Justice of the Supreme Court," 2 id. § 135; and one reference to "Chief Justice of the Supreme Court of the United States." 48 id. §1465. To be entirely accurate, a few statutes use "Chief Justice of the United States" for the first reference and thereafter use the short "Chief Justice." See, e.g., 28 id. §§ 672, 673.

35. C. Fairman, supra n. 21, at 163-67. Fairman's scholarship on this point inspired this article.

36. See Mason, "The Chief Justice of the United States: Primus Inter Pares," 17 J. Pub. L. 20 (1968).