12

Let's suppose that, during a presidency, enough justices retire, making it possible for the president to appoint new justices which would give the Supreme Court a different ideological majority.

Would the president have the legal ability to demote the incumbent chief justice to associate justice, and to appoint a new chief justice, more in accordance with the ideology of the new majority of the Court?

  • 1
    Is the Chief Justice position attached to the perceived ideological balance of the Court? – Drunk Cynic Nov 23 '18 at 16:46
  • @DrunkCynic - Nope, as I'm guessing you knew when you posed that question. – PoloHoleSet Mar 5 at 0:23
  • 1
    @PoloHoleSet Correct, it was a leading question. – Drunk Cynic Mar 5 at 1:33
10

The Chief Justice position is a constitutional grey area.

The US constitution does not mention how that position is appointed. It in fact only acknowledges its existence in a single sentence regarding presidential impeachment (Article I, Section 3, Clause 6: "When the President of the United States is tried, the Chief Justice shall preside.").

There are political scholars who argue that the President should not have the right to appoint someone explicitly for the Chief Justice position and the Supreme Court should choose the Chief Justice from among them. But so far no Supreme Court has ever tried this.

If the president would step into that grey area and try to replace the Chief Justice, then the Supreme Court would also be in the position to decide if that is constitutional. If they come to a decision, that decision would then likely properly codify the procedure for choosing the Chief Justice in the future.

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    This seems right as far as it goes, but also incomplete. The Constitution also doesn't specify the size of the court - that's up to Congress. So are there any relevant non-Constitution laws? Even a "nothing has ever addressed it" would finish this off. – Bobson Oct 26 '16 at 9:22
  • Regardless of the lack of specificity in the Constitution, even mentioning the existence of a Chief Justice presupposes the existence of such a title, and all federal judicial appointments come without term limitations. The chief justice isn't just appointed, but has to be confirmed, specifically for that position, by the US Senate under the Appointments Clause of the US Constitution. There would be no way for anyone to try and unseat a sitting Chief Justice outside of impeachment, just like with all the other federal judicial appointments. – PoloHoleSet Mar 5 at 0:37
  • @PoloHoleSet: I'm not sure it's that easy. Presidents have in the past elevated Associate Justices to Chief, but that would seem problematic if you assume their initial appointments were "for life." – Kevin Mar 5 at 2:36
  • @Kevin any associate justice can resign for any reason, including to accept an appointment as chief justice. – phoog Mar 5 at 6:24
  • @Kevin - It really isn't problematic. ASomeone at the federal circuit or appeals level is appointed for life. They relinquish that position, voluntarily, as phoog mentioned, to accept a position with the Supreme Court. That came into play with the Kavanaugh appointment and complaints filed about his testimony before the Senate - Roberts held on to them until he was confirmed, then passed them to one of the courts to "investigate," and, as expected, they said "we have no jurisdiction over this because he's now a federal judge at the SCOTUS level, which we have no authority over." – PoloHoleSet Mar 5 at 15:38
5

The President does not have the power to demote or remove judges. In fact, no one can demote a judge. Congress can impeach and remove a judge, but it requires a two-thirds majority to do so. That is difficult to do for political reasons, as in the United States it is rare that either major political party holds less than a third of the Senate. So either party can block partisan actions by the other. An impeachment can only succeed with support from both major parties.

Looking specifically at current events, it seems unlikely that Republicans would go along with an attempt by Hillary Clinton to change the Chief Justice. And Democrats are unlikely to have more than fifty-four Senators (including Angus King and Bernie Sanders, who were elected as independents) after the current election. Most estimates are closer to an even split, possibly even a Republican advantage.

The other answer suggests a theoretical argument that the president doesn't have the power to appoint a Chief Justice. That may be a more practical way of doing this. However, there is a long custom of presidents appointing chief justices. While that's not a legal precedent, the court often pays deference to such customs--particularly one that goes back to a time when the writers of the constitution were alive and in Congress to object. In this case in particular, justices might be concerned that this would create a precedent for political interference with the court. That said, there's no legal precedent blocking it. It's possible.

In terms of the law, the relevant section would seem to be 28 Part I Chapter 1 Section 3 which just says

Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.

It does not explain how a chief justice is appointed or qualified. Nor does that appear in the other sections of chapter 1.

  • It's not just a "custom" - "and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court" Chief Justice is a judge of the Supreme Court, so must be nominated and confirmed, according to the Appointments Clause. Since there is a specific reference made elsewhere in the Constitution to the Chief Justice, there is specific nomination and confirmation for that position, vs Associate Justices. Anyway, this is the correct answer. – PoloHoleSet Mar 5 at 0:42
  • Conviction on impeachment requires a two-thirds majority in the Senate only. The House can impeach a justice (or anyone else subject to impeachment) by a simple majority. – phoog Mar 5 at 6:27
  • @PoloHoleSet the fact that the chief justice is appointed specifically to that position is purely a matter of custom. If George Washington had appointed the required number of justices without designating any of them as chief, the first court would have decided among themselves who was chief, and that would have been equally in compliance with the constitution. – phoog Mar 5 at 6:31
  • @phoog - I don't think it is a matter of custom. It says justices to the Supreme Court must be confirmed. The Constitution specifically mentions the Chief Justice of the Supreme Court, so that is a justice of the SCOTUS, and it is specifically defined as a position separate from the other Supreme Court positions. Also, while not set in stone, the Constitution says that Congress will determine which positions must be confirmed, and there is a formal document ("the Plum Book") that is compiled by the relevant House and Senate committees that define all positions that are appointments. – PoloHoleSet Mar 5 at 15:25
-1

It seems that since the President appoints Justices he would have the ability to designate a Chief Justice since the Constitution refers to appointment which is the authority of the President. I would think that duly qualified would refer to confirmation.

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    Welcome to Politics! This is a decent answer considering the uncertainty expressed in the other answers, though this answer could be improved by linking to sources (e.g. where does the phrase "duly qualified" come from?). – Null Mar 4 at 20:48

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