Presidential power to select the Chief Justice for life - where is this defined?

Factual Questions
1

Consider the following hypothetical: Hillary Clinton is elected President next year, and serves two full terms. During her time in office, every Justice except Chief Justice Roberts, and associate Justices Sotomayor and Kagan die, retire, or are incapacitated. (But nobody is impeached.) Clinton nominates six center-left Justices to the Supreme Court, and all of them are confirmed.*

As I understand it, barring something out of the ordinary, Roberts would continue to be Chief Justice, despite being effectively a minority of one on the Supreme Court.

But where does this come from? All the Constitution says about the Chief Justice, AFAICT, is that the C.J. presides over impeachment trials.

So with respect to the following, (a) have I overlooked something in the Constitution itself, or (b) has Congress passed statutes concerning the Chief Justice specifically, or © is it just long tradition that establishes these things?

  1. Where does it say the President gets to decide (subject to Senate confirmation) which Justice is the Chief Justice?

  2. Where does it say that once one is Chief Justice, one continues as Chief Justice as long as one is on the Supreme Court, rather than (for example) becoming merely an Associate Justice once a new President decides s/he wants someone else to be C.J.?

The brief bit of digging I’ve done suggests that (1) is strictly a matter of tradition, going back to Washington’s selection of John Jay to be Chief Justice on the first Supreme Court, and that (2) is simply tradition as well. But I’m sure our board’s many legal eagles can correct or clarify, as appropriate.
*Obviously this is just a more extreme version of a much more plausible hypothetical: that a two-term President Clinton would get to nominate replacements for Ginsburg, Scalia, Kennedy, and Breyer, whose ages in 2024 would be 91, 88, 88, and 86, if they live that long, but that Thomas and Alito, who would be in their mid-70s in 2024, and Roberts, who would be 69 then, would remain on the Court through both hypothetical Clinton terms. Under this more plausible hypothetical, Roberts’ minority would be larger, but the idea would be the same.

2

The appointment is to the office of Chief Justice. The President nominates, the Senate confirms (, technically, gives advice and consent). If an Associate Justice is to be made Chief Justice, then that’s another appointment requiring new Senate confirmation (plus, the President then gets to nominate a new successor to the now vacant Associate Justice post, for which confirmation is again required).

See above. The initial appointment of the Chief Justice is to the office of Chief Justice, and runs until the appointee retires or dies. It’s not like people are simply nominated to the Supreme Court, and someone gets to decide afterwards who of them is going to be Chief Justice.

3

This was, by the way, nicely illustrated when John Roberts was appointed. He was initially nominated as successor to Sandra Day O’Connor, who had announced her intention to retire. While the Senate confirmation process was still ongoing, Rehnquist died. President Bush then withdrew Robert’s nomination as O’Connor’s successor and nominated him as as new Chief Justice. Legally, these were two separate nominations.

4

It seems implicit in the OP that there is some connection between being Chief Justice and representing some kind of majority on the Court, like how the Speaker is the leader of the majority in the House. There is no such connection. The Chief Justice is not a representative position in that way.

But just to add one thing to the previous answer, the source of the presidential power in this case is the appointments clause (art II, sec 2, clause 2), and Art III, sec 1, which directs that judges shall hold their offices as long as they behave.

5

Then where it says it is post #2 of this thread!

Did it say it anywhere *before *you said it here, though?

Seriously, the only thing the Constitution appears to say about the office of Chief Justice as a distinct thing from the other Supreme Court Justices is that the C.J. presides over impeachment trials. It doesn’t say that it’s a separate office for purposes of appointments and confirmations. Article II, Section 2 gives the President the power to appoint “Judges of the supreme Court.” Doesn’t say s/he gets to say which one is Chief.

Is there a statute that does say this? Or if the Associate Justices had selected one of their own to succeed , say, Oliver Ellsworth as C.J. upon his resignation in 1800, would that have become the way Chief Justices were selected?

6

Well, who decided it wasn’t? That’s the question here.

7

Title 28 of the US Code specifies that “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices” but it doesn’t describe the method for choosing them.

8

I sense quite an aggressive tone here for a GQ, so please let’s keep this factual. So once again: You seem to think that people are simply appointed to a Supreme Court membership, without distinction between Chief Justice and Associate Justices, and then the Chief Justice gets somehow chosen from among these people. That’s not how it works. SC members are appointed either as Chief Justice or Associate Justice from the beginning, and stay in this office until they die or retired. It’s possible to be an Associate Justice first and then become a Chief Justice, but that would be a new appointment requiring the entire confirmation process to begin again. Similarly importantly, it would require the Chief Justice position to be vacant before the nomination can be made. The Constitution has consistently been interpreted along these lines.

The Constitution does not, by the way, differentiate between various cabinet secretaries or other public offices either. By your token, all presidential appointments, from Secretary of Defense over Secretary of the Treasury down to whatever other office is appointed under Article I, section 3, could be nominated and confirmed in one go, and it would not be sorted out until afterwards who of these many appointees gets which position. That would clearly be nonsensical.

9

Supreme Court justices, like all other federal judges, are nominated, confirmed, and appointed in their personal capacity. The Constitution is very clear on this. Why would they represent anybody?

10

If I may… it seems to me that RTF is asking why the president gets to select the CJ. The constitution only refers to that office, and never says how that office is filled. Yes, the Constitution says the president gets to nominate justices for the SC, but it doesn’t say he gets to decide who the CJ is.

This is an interesting question, and I don’t think it can be just hand-waved away as some of the folks here are doing. Suppose a future president HRC decides to appoint a different SC Justice to be CJ, and the Senate approves, why wouldn’t he or she replace Roberts, who then becomes another AJ? Not likely to happen, but could it, theoretically?

11

Sorry, that must read Article II, section 2.

12

The Chief Justice’s main power within the court is persuasion and the ability to designates the majority opinion. He (or she) could vote in the majority for something that he doesn’t agree with, and then write the opinion in ways so that it’s limited in scope.

13

You may find this paper helpful: Choosing a Chief Justice: Presidential Prerogative Or a Job for the Court?

While it posits that there should be an alternate method than the current traditional one for selecting the Chief Justice, it also provides a little bit of background:

So it sounds like this is one of the rare pieces of American democracy that is dominated neither by an explicit constitutional provision nor an act of Congress - it’s dominated by 200 years of tradition.

How would one go about changing it? Probably by act of Congress, I would guess…

14

I think Schnitte is making the point that Chief Justice is a distinct position separate from Associate Justice. So John Roberts was nominated and appointed specifically to the job of Chief Justice and holds it for life.

This is why if Roberts were to die tomorrow, Obama couldn’t simply move an Associate Justice like Kagan into the job. Any nomination to the Chief Justice job, even a nomination of an Associate Justice, is an appointment to a new job.

15

I know what he posted. I’m just saying that it’s unclear that the Constitution HAS to be interpreted that way.

16

More accurately it’s a convention. Like most things American, or indeed most problems world over (;)) you can simply blame the British, the Crown had always appointed judges to be Chief Justice of one of the four Courts in Westminsster Hall and the post of CJ was considered a separate appointment from elevation to the court (until the 20th century, it was an expressly political one). So the US continued with that.

17

There are many constitutional provisions that can be interpreted in various ways, and there are quite a few constitutional provisions where the predominant interpretation is not necessarily the one that one would think of first when simply reading the wording. Nonetheless, this is how this provision has been interpreted and applied. The only way this could be changed is if either the Supreme Court adopted a different interpretation, which is unlikely since the justices who would have to rule in such a case would themselves have been appointed under the old interpretation, or a constitutional amendment is passed.

18

Indeed, so much of American politics and law is the result of tradition, rather than explicit provisions. One thing to consider is that the Constitution was not invented out of a vaccum. Instead, the founders had a significant history of colonial and post-colonial governance to guide them. Over 150 years passed between the founding of the first English colony (1607, Jamestown) and the Declaration of Independence. Between the Declaration of Independence and the 1787 Constitutional Convention (when the current Constitution was created), the thirteen states had several years of experience with governance under the Articles of Confederation. Consider judicial review – the US Constitution makes no explicit mention authorizing the Supreme Court to invalidate laws passed by Congress. Yet, this is one of the most powerful tools yielded by the Judiciary branch today. While Marbury v. Madison may have clarified this power, judicial review was long practiced in state courts in several of the original thirteen states. Several of the delegates to the 1787 Constitutional convention were familiar with the concept (being lawyers themselves) so it’s no surprise that it was enshrined into the Constitution without explicit explanation.

19

Probably the same guy who decided that generals, once appointed, generally aren’t considered partisan political officeholders.

20

But only one of the justices would have been appoint Chief Justice. And it’s not like the president would be kicking the CJ off the court, s/he’d just be rotating positions on the court. Perhaps Roberts could bring a case to the SC, but then he’d have to recuse himself as well. And the new nominee would have to recuse himself/herself, too. That would leave 7 justices to decide.

And I’m not sure it’s correct to say that it’s been “interpreted” that way, since the court has not ruled on it, AFAIK.