The Volokh Conspiracy
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Seth Barrett Tillman and I explain at Balkinzation how Clarence Thomas, the most senior Associate Justice, could preside at an impeachment trial in Chief Justice Roberts's absence. Here is a snippet:
Our understanding of the House Officers Clause and Senate Officers Clause also informs a contemporary and unsettled question: What would happen if the Chief Justice was unable to preside at a presidential impeachment trial? We suggest that the Constitution treats the position of Chief Justice in a similar fashion as it does the Speaker. In both cases, the greater power to create (by statute) or fill (by vote) a position, includes the lesser power to select temporary substitutes for or when that position goes vacant.
There is some evidence from the first Congress which supports our position. The Judiciary Act of 1789 established a 6-member Supreme Court composed of a "chief justice and five associate justices" having "precedence according to the date of their commissions." Through this seminal law, the First Congress recognized that the greater power to create an office by statute, i.e., the Chief Justice's position, embraces the lesser power to create temporary alternates. If, for whatever reason, our first Chief Justice, John Jay, had been unable to attend to matters at the Court, the Associate Justice with the most seniority would preside. Indeed, the Constitution and the text of the Judiciary Act provide evidence of this principle: the Constitution refers to a Chief Justice and "judges of the Supreme Court"—not "Associate Justices." The Judiciary Act of 1789, and not the Constitution, introduced the term Associate Justice. This statute's language suggests that the First Congress intended that the other judges of the Supreme Court could serve as substitutes for the Chief Justice.
A more modern statute, from 1948, offers on-point guidance. It provides that "[w]henever 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." In other words, if the Chief Justice cannot perform his duties, then the associate justice with the most seniority—known as the Senior Associate Justice—serves as acting Chief Justice.
To be sure, this statute appears in the chapter of the United States Code that governs the Supreme Court. This provision could be read in a narrow fashion: it may only apply to the Chief Justice's regular Supreme Court duties (and other duties conferred by statute), but, perhaps, it does not extend to the Chief Justice's constitutionally-mandated role during a presidential impeachment trial.
There is no good policy reason why this statute should be read so narrowly—especially in the unlikely event that Chief Justice cannot preside. The existence of this statute could avert something close to, if not an actual constitutional crisis, in which a presidential impeachment trial is unable to proceed to a verdict. We know that the House has the greater power to fill the Speaker's position, and also has lesser power to choose a substitute. Likewise, Congress has the greater power to create, by statute, the position of Chief Justice. Therefore, Congress should have the lesser power to provide, by statute, for temporary alternates during a presidential impeachment trial. Moreover, the 1948 statute reflects the original practice of the government in regard to temporary alternates for positions specified by constitutional text.
By all accounts, Chief Justice Roberts is in good health. (He was briefly hospitalized after a seizure in July 2007.) Moreover, we do not put any weight in claims that Roberts would have to recuse from the trial. Roberts' pointed opposition to President Trump's criticism of "Obama judges" was well-measured, and it does not give rise to the appearance of impropriety. But in the unlikely scenario that Roberts is unavailable, Clarence Thomas, the most senior Associate Justice, would preside. Indeed, if Roberts and Thomas both were to bow out, Ruth Bader Ginsburg—the next most senior Associate Justice—would be called upon to preside. Albeit, her own comments about Trump would give rise to a much stronger case for recusal.
We think these substitutions would be constitutional, even in the absence of the 1948 statute. However, the existence of the 1948 act ensures that there is a statutory basis by which Justice Thomas, or even Justice Ginsburg could preside. All should hesitate before calling this statute into constitutional doubt, at the moment of a presidential impeachment, especially when both background principles and long-standing congressional procedure support the law's validity.
Fortunately, these scenarios are unlikely, but it is worthwhile to consider all possibilities before they arise. When position of Chief Justice is vacant, and when the Chief Justice is unable or unwilling to preside over a presidential impeachment trial, our government should not and need not grind to a halt.