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Oral argument now is very different than it was in the early days of the Court. But one thing hasn’t changed since the day when Chief Justice Marshall favored Pinkney with the highest possible praise. As Marshall recognized, a Justice’s best work requires the clearheaded guidance of a brilliant oral advocate. Perhaps that legacy explains why Roberts had another tradition: Before arguing cases at the Supreme Court, Roberts would always touch the enormous statue of Chief Justice John Marshall that rests on the Supreme Court’s ground floor. It is that connection between Justice and oral advocate that has remained constant from the inception of the Court.
CUSTOMS AND TRADITIONS OF THE COURT
AS THE SUPREME COURT HAS EVOLVED FROM ITS EARLY DAYS to occupy a critical role in our democratic society, the Justices have developed various customs and traditions. Some are born of pragmatism or collegiality. Others are intended to shape the manner in which the Court carries out its work. Many of these public customs—those observed by visitors to the Court—add formality and austerity to its proceedings and symbolize the gravity of its role. On the other hand, most of the Court’s private customs—those observed only by the Justices—reinforce the inherently intimate, collaborative nature of the Justices’ work and the importance of good relations among the Justices to the successful completion of that work.
Perhaps the best-known rite of passage for each Supreme Court Justice is the taking of the oath of office. An oath is constitutionally required of all federal employees, not just judges. Article VI, paragraph 3, the United States Constitution provides:
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
Justice Sandra Day O’Connor’s Judicial Oath of Office, signed by O’Connor and witnessed by Chief Justice Warren E. Burger. (Photograph Credit 8.1)
The wording of the oath, however, was left up to Congress. The original version of the Constitutional Oath, used from 1789 to 1861, read: “I do solemnly swear (or affirm) that I will support the Constitution of the United States.” Starting in the middle of the nineteenth century, the oath was changed several times before Congress settled on the version used today. Codified by statute, the oath now reads:
I, ____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.1
The Constitutional Oath is now taken by all federal employees, except the President.2
In addition to the Constitutional Oath, Congress established a Judicial Oath. The requirement that all judges take this oath was set out in the Judiciary Act of 1789, which required that “the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices” take an oath or affirmation. As revised by the Judicial Improvements Act of 1990, the Judicial Oath now reads:
I, ____________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as __________ under the Constitution and laws of the United States. So help me God.3
Justice Clarence Thomas became the first Justice to take the revised oath, in October 1991, and every Justice confirmed since has followed suit.
If two oaths are too many, a Justice can instead swear the Combined Oath. It reads:
I, __________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as __________ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.4
Chief Justice Earl Warren chose the Combined Oath after receiving his permanent commission when he was sworn in on March 20, 1954. President Eisenhower had appointed Warren five months earlier during a congressional recess after the death of Chief Justice Fred Vinson. Warren had already taken each oath separately for his recess appointment, so he was perhaps tired of oaths by the time the Senate ratified his permanent appointment. On June 23, 1969, he administered the Combined Oath in open Court to his successor, Chief Justice Warren Burger. This was the first time an outgoing chief swore in his replacement, and Chief Justice Burger perhaps thus saw fit to use the same oath his predecessor had sworn.
NEITHER ARTICLE VI OF the Constitution nor federal statutes specify a procedure for taking the oaths. The first Chief Justice, John Jay, took both of his oaths from the Chief Justice of New York, Richard Morris, in an unremarkable ceremony in a state courtroom on October 19, 1789. 5 He wasn’t even the first Justice to do so; two weeks earlier, Justice James Wilson had claimed the honor of becoming the first fully vested member of the Court by taking his oaths. There was no requirement that the oath be taken before another judge, so Justice Wilson had taken his oaths before the mayor of Philadelphia.6
After the establishment of the federal circuit courts, Justices typically took their oaths either upon receipt of their commission or when they arrived at the circuit courts to perform their circuit justice duties.7 Due to the magnitude of their circuit responsibilities, Justices were more likely to arrive at a circuit court before they arrived for a sitting of the Supreme Court. When Justices arrived to sit with the Supreme Court for the first time, if they had already taken the oaths at the circuit court, they would “present [their] commission[s] to the Clerk of the Court who would read it aloud in open court and record it in the Court’s minutes.”8
In the second half of the 1800s, the Supreme Court Term increased in length. Around that time, the Justices’ circuit court duties also decreased, such that new Justices were more likely to arrive first to the Supreme Court before they embarked upon circuit responsibilities.9 At that time, a tradition began of having two oath ceremonies. The first ceremony involved the Constitutional Oath—the one given to all federal employees. That ceremony was usually held in private at the Supreme Court, and the Chief Justice or Senior Associate Justice administered the Constitutional Oath to the new Justice.10 The second ceremony was a public one in which the Clerk of the Court administered the Judicial Oath.11
The tradition of two ceremonies has been followed since the late 1800s, but the location of the Constitutional Oath ceremony has varied. In 1940, President Franklin D. Roosevelt invited newly appointed Justice Frank Murphy to take his Constitutional Oath in a ceremony at the White House.12 Justices since that time have usually taken an oath at the White House, though sometimes they were retaking an oath for the White House ceremony because they had already taken both oaths at an earlier time. For example, Justice Anthony Kennedy took both oaths in the Justices’ Conference Room at the Supreme Court on February 18, 1988, took the Judicial Oath again in open court during a special sitting on the same day, and took the Constitutional Oath again the next day at a special White House ceremony with President Reagan.13 Recently, some Justices have voiced concerns about this trend. Justice John Paul Stevens, for instance, has expressed a preference for holding the ceremony at the Supreme Court rather than the White House to better symbolize the separation of powers among the three branches of g
overnment and underscore the independence of the judiciary.14
Harlan Fiske Stone being sworn in as Chief Justice at Rocky Mountain National Park. (Photograph Credit 8.2)
At other times, special circumstances have caused Justices to take the oaths in unconventional locations. For example, Chief Justice Harlan Fiske Stone was confirmed in July 1941 while he was on vacation in Colorado. Chief Justice Stone received a telegram from the White House informing him of his confirmation, and then took both the Constitutional and Judicial oaths at the Sprague Hotel in Colorado before the U.S. commissioner for Rocky Mountain National Park, Wayne H. Hackett.15 In the summer of 1994, newly confirmed Justice Stephen Breyer was so eager to get a start on his new duties that he traveled all the way to Chief Justice Rehnquist’s rustic summer cottage on the shores of Caspian Lake in northeastern Vermont for a swearing-in ceremony with just his wife at his side, without the knowledge of the press. Justice Breyer’s secretary had told a reporter that morning that the Justice was merely out running errands, and the Supreme Court’s public information officer did not inform reporters about the ceremony until an hour after it had occurred.16
Of course, with so many oaths come many great firsts. For example, when President Franklin D. Roosevelt invited Justice Murphy to take his Constitutional Oath at the White House on January 18, 1940, he became the first President to witness a Justice’s oath, and Murphy became the first Justice sworn in at the White House. On October 1, 1945, President Harry S. Truman became the first President to visit the Supreme Court for an oath ceremony when he witnessed Justice Harold H. Burton taking the Judicial Oath in the courtroom.
Justice Antonin Scalia can claim a unique accomplishment. He was the first Justice to take his oaths from different Chief Justices on the same day. On September 26, 1986, retiring Chief Justice Warren E. Burger administered Justice Scalia’s Constitutional Oath at the White House, where he also administered that oath to the new Chief, William Rehnquist. Later that day, Chief Justice Burger administered the Judicial Oath to Rehnquist at the Court. The new Chief Justice Rehnquist then administered the Judicial Oath to Justice Scalia.17
Swearing-in ceremony for Chief Justice William H. Rehnquist and Justice Antonin Scalia, which took place in the East Room of the White House on September 26, 1986. (Photograph Credit 8.3)
Not to be outdone, Justice David Souter was the first to take an oath on national television. On October 8, 1990, President George H. W. Bush looked on at the White House as Chief Justice Rehnquist administered Justice Souter’s Constitutional Oath before the cameras.
Before taking his seat at the center of the Court’s bench for the first time, the Court’s current Chief Justice, John G. Roberts Jr., took part in a series of oath-taking ceremonies. On September 29, 2005, Justice Stevens administered the Judicial Oath to the new Chief in a private, intimate ceremony in the diplomatic reception room at the White House, attended by the Chief’s family and other members of the Supreme Court. Later that day, Justice Stevens administered the Constitutional Oath to the Chief Justice in a public ceremony at the White House that was attended by President George W. Bush and broadcast worldwide on live television. Other members of the Supreme Court, their spouses, and many dignitaries also attended this ceremony. And Chief Justice Roberts was still not finished swearing oaths when he left the White House. A week later, he was again sworn in, this time in a private investiture ceremony for the Chief Justice in the courtroom, one hour before the Court’s Term began on the first Monday in October 2005.
The two newest Justices, Justice Sonia Sotomayor and Justice Elena Kagan, did not take either of their oaths at the White House. Both took their Constitutional Oath in the Justices’ Conference Room at the Supreme Court, in front of family, friends, and other Justices, and then their Judicial Oath in one of the Supreme Court conference rooms, before a small gathering of family and friends. Both of their Judicial Oath ceremonies were broadcast live on television.18 Each later retook the Judicial Oath in a formal investiture ceremony in the Supreme Court’s courtroom with President Barack Obama in attendance.19 No photographs or videos are permitted in the Court courtroom, so there are no photos of the formal investiture ceremonies. The iconic photos of new Justices usually come from the moments after the ceremony when the Chief Justice and the new Justice walk down the grand white marble steps in front of the Court to greet reporters gathered on the Supreme Court plaza. Only the Justices know what they and the Chief Justice discuss while they walk down the steps to the flash of hundreds of cameras.
Justice Sandra Day O’Connor signing her oaths of office in the Justices’ Conference Room as Chief Justice Warren E. Burger looks on, September 25, 1981. (Photograph Credit 8.4)
As the first woman appointed to the Court, I was naturally the first woman Justice to take the oaths. I was also the first to have guests in the Justice’s private conference room to watch the ceremony. On September 25, 1981, I took my oath in that intimate setting, joined by my husband, President Ronald Reagan, Mrs. Nancy Reagan, and Mrs. Vera Burger, wife of Chief Justice Warren Burger. It was an incredibly special moment, one I will never forget.
One interesting feature of the formal investiture ceremonies is that since Lewis Powell’s ceremony in 1972, each newly appointed Justice is permitted to sit in the historic chair used by Chief Justice John Marshall.20 The chair sits at the well of the courtroom below the bench and has been well preserved, but needless to say, its use is reserved for this very special occasion. Justice Sotomayor recently called sitting in the ceremonial chair the “most symbolically meaningful moment” of her investiture, saying she felt as if emotion and “history [were] coursing through” her.21 I myself vividly remember being escorted to that chair by Alexander Stevas, the Supreme Court chief clerk, on September 25, 1981, while my husband, three sons, mother, father, sister, and brother looked on. It was also the first of many Supreme Court traditions I would have the honor of experiencing as a Justice. Indeed, customs pervade the day-to-day work of a Justice.
Justice O’Connor with Chief Justice Burger and President Reagan the day of her investiture, 1981. (Photograph Credit 8.5)
ONE OF MY FAVORITE traditions—the judicial handshake—takes place just before oral argument. Before taking the bench, as we say, the Justices gather in the robing room and each Justice shakes hands with and greets every other Justice—thirty-six handshakes in all. Although there is some dispute, the prevailing view is that the custom was instituted by Chief Justice Melville Fuller, who served as chief from 1888 until 1910. Known as “the judicial handshake” even though there are many handshakes involved, the custom is meant to symbolize that the Justices must all work together regardless of personal or ideological differences. It ensures that the frustrations and rancor that are too often the result of passionate disagreement are cast aside, or sufficiently quelled, to allow for a cordial greeting before every session of the Court. It reminds each Justice, moments before taking the bench, that the work of the Court is by necessity collaborative and is carried out by an intimate group of colleagues and friends.
The bench chair used by Chief Justice John Marshall, roughly 1819–1835. It is the only piece of furniture known to survive from the set made for the Court’s use in 1819. (Photograph Credit 8.6)
I have vivid memories of the first judicial handshake I experienced. That was mostly due to Justice Byron White, an NFL football star who possessed, as I soon learned the hard way, a viselike grip. As I shook each of my new colleagues’ hands, Justice Byron White shook my hand in his with such force that I felt tears spring to my eyes from the pain! From then on, I resolved to grab his thumb instead of giving him my hand. That was a preemptive measure I knew I needed to take to endure the many handshakes to come in the years ahead!
When the Justices finish shaking hands, two more customs stand between them and their seats. The first governs the manner in which they dramatically enter the courtroom. Four grand columns stand behind the bench, creating three spaces through which the Justices ca
n enter. Elegant drapes create a narrow entrance in each of those spaces. The three entrances are equally shared by the nine Justices; three Justices enter through each entrance.
The Court’s marshal simultaneously carries out the final custom in a ceremony that is as well choreographed as it is brief. The Justices’ entrance is heralded by the marshal’s loud bang of her gavel, which signals all present in the courtroom to stand. As the Justices next emerge in their triple trios, the marshal declares in a booming voice: “The Honorable, the Chief Justice, and the Associate Justices of the Supreme Court of the United States.” When the Justices reach their seats, she continues: “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” A second rap of her gavel ends the proclamation and everyone sits.
The Justices’ practice of entering the courtroom in three groups of three began when the Supreme Court moved to its present home in 1937. However, the opening cry was instituted much earlier. On February 2, 1790, with a quorum of four of the six Justices present, a simple announcement for silence marked the start of the Court’s proceedings at the Merchants Exchange Building in New York City. The newly formed Court appointed its first “cryer,” Richard Wenman. The next day, Wenman cried the Court for the first time. The cry has been heard before every sitting since, though the text has varied slightly over the years. The cryer did not fare as well as the cry. After approximately thirty people held this ceremonial post, it was eliminated in 1962. The Court’s marshal has assumed the duty of delivering the Court’s invocation ever since.