United States Supreme Court Chief Justice Unlikely to Be the Court’s Most Senior Member

Posted on Categories Public, U.S. Supreme Court, Wisconsin Supreme Court

Wisconsin, like a number of states, designates the senior member of its state supreme court in terms of service as the Chief Justice.  The United States Supreme Court, in contrast, uses a system in which the President of the United States chooses a new Chief Justice every time the existing Chief dies or steps down.

Although the new Chief Justice can be chosen from the ranks of sitting justices, thirteen of the sixteen Chief Justices in U.S. history were appointed to the position from outside the court (although one, Charles Evans Hughes, was a former Associate Justice).  The Associate Justices elevated to the head of the Supreme Court were Justices Edward White (1910), Harlan Fiske Stone (1941), and Wisconsin’s own, William Rehnquist (1986).

One of the consequences of this system of appointment is that it has been quite rare in American history for the Chief Justice also to be the senior justice in terms of service on the court.  Ordinarily the senior justice is not the Chief Justice, but the justice who sits on the Chief Justice’s immediate right.

Only four times in the Court’s 200+ year history has the Chief Justice also been its most senior member.  The first occasion came following the death of Justice Bushrod Washington in 1829.  With Washington’s death, his Federalist colleague Chief Justice John Marshall became the Court’s senior member and continued to be until his death in 1835.

The other three Chief Justices to achieve “senior-most justice” status, were, not surprisingly, the three Chief Justices appointed from the ranks of the Associate Justices.

Following the death of John Marshall Harlan the elder in October of 1911, Chief Justice Edward White, who had only been Chief Justice for 10 months, but who had served on the Court since 1894, became the senior member and remained so until his death in May 1921.  Harlan Fiske Stone (appointed in 1925) was already the senior member of the Court when he was appointed Chief Justice in 1941, a position he held until his death in 1945.  (Stone’s seniority may have been the reason why President Franklin Roosevelt chose the liberal Republican over numerous Democratic contenders for the honor.)

The most recent Chief Justice to achieve senior justice status was William Rehnquist.  Following the retirements of Associate Justices Byron “Whizzer” White and Harry Blackmun in 1993 and 1994, respectively, Rehnquist (appointed 1973) became the Court’s longest-serving member.   He also served longer in that dual capacity, from August 3, 1994 (the day of Blackmun’s retirement), to September 3, 2005 (Rehnquist’s death), a period of 11 years and one month.

4 thoughts on “United States Supreme Court Chief Justice Unlikely to Be the Court’s Most Senior Member”

  1. I prefer the Wisconsin system of seniority. It takes politics out of the equation.

    One little-known fact about Wisconsin’s William Rehnquist is that before becoming an associate justice, he was never a judge on any lower court. I wonder if he is the only chief justice who came onto the court with no prior judicial experience.

  2. Thanks, Gordon, for this blog piece. Some Wisconsin legislators are attempting to set into motion a constitutional change on how Wisconsin selects its chief justice (to elect a new chief justice everytime a justice is elected or reelected). The bill is in the Wisconsin Assembly. Yesterday, some Democrats made an interesting procedural move by tacking on an amendment on recusals. That move will slow down the process of getting to a referendum on the issue. See:

    http://quorumcall.wispolitics.com/2012/03/constitutional-amendment-on-supreme.html.

  3. Neither Stone nor Hughes, as I recall, had prior judicial experience. Hughes was a politician, of course, and Stone was a government lawyer (I believe). Nonetheless, all served as associate justices prior to their respective stints as Chief.

  4. A forthcoming post will address the question of the prior judicial experiences of chief justices. The short answer is that 9 of the 17 men who have been Chief Justice of the United States Supreme Court have lacked any prior judicial experience below the Supreme Court level at the time of their appointments.

    Moreover, 3 of the 8 who had judicial experience completed their terms as Chief Justice by 1801.

    In the above post, I did not count John Rutledge as one of the Chief Justices, but upon further reflection, I probably should have, since he was sworn in as Chief Justice and presided over one term of the Supreme Court.

    Rutledge was one of the original five members of the Supreme Court, but he resigned in March 1791 without having heard a case in order to accept a postion on the South Carolina Court of Pleas.

    After John Jay resigned in 1795, President Washington appointed Rutledge as the new Chief Justice. Congress was not in session at the time, and Rutledge was sworn in as a recess appointment on June 30, 1795.

    By the time Senate finally voted on Rutledge’s appointment in December, Rutledge’s reputation had suffered because of his bitter denunciation of the Jay Treaty (which was supported by the Washington Administration) and by rumors that he was mentally ill.

    His nomination failed by a Senate vote of 10-14, on December 15, and he officially stepped down from the bench on December 28.

    However, at no time during his brief stint as Chief Justice was Rutledge the senior member of the court. That is true even if his original two years of service as an associate justice is counted.

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