118. The Chief Justice and the Inauguration

The tradition through which the Chief Justice swears in the new president reflects a telling evolution in our understanding of the normative relationship between the Court and the head of state.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

A lot of folks are focused on what’s already being reported about President-Elect Trump’s plans for later today/the rest of this week. But it’s important to wait to see what the new administration actually does, and not just what’s reported/what it says.

Instead, I thought I’d use today’s inaugural ceremonies to make a simple but potentially significant point about how the Chief Justice’s role in swearing-in new presidents has evolved. Nothing in the Constitution requires the Chief Justice (or even a federal judge) to administer the oath of office. And for those who care about Founding-era practices, Chief Justice John Jay didn’t swear-in President George Washington to either of his terms of office. But the way that the tradition emerged in the middle of the nineteenth century, it came to reflect the role of the Chief Justice—and, through him, the Supreme Court—in formalizing, if not legitimizing, the lawful transition of power. It’s yet another subtle way in which the Court has come to play an even more central role in our institutions than the Constitution’s drafters may have intended.

But first, the news.

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On the Docket

The Court capped off a busy week with two big developments last Friday.

First, Friday morning, the Court handed down its not-especially-surprising decision in the TikTok case. In an unsigned majority opinion (which was widely reported as unanimous, but might not be),¹ the Court upheld the anti-TikTok statute, albeit in a decision that sidestepped a bunch of the bigger First Amendment questions. There will be a lot more to say about the ruling, but at first blush, it seems like the justices were at least somewhat mindful of the risks of saying too much, too quickly. Whether the TikTok ruling becomes an important First Amendment precedent or a very case-specific one remains to be seen, but given how quickly the Court decided the case, and its track record in moving so quickly in a handful of prior disputes, it certainly could have been a lot worse.

Later on Friday, the Court also added five more cases to its docket for the current term—almost certainly the last five cases it will hear this term absent exigent circumstances. I’ll have more to say on the overall shape of the docket in a future issue; for now, the big headline has to be the grant in Mahmoud v. Taylor—a case asking whether the Free Exercise Clause of the First Amendment protects the right of public school parents to opt to have their children exempted from reading any materials that are inconsistent with their religious beliefs (in that case, LGBTQ-themed books). The potential expansion of the Free Exercise Clause and the (at least superficial) inconsistency with the hostility toward parental rights in the context of gender-affirming medical care for transgender adolescents both make this a pretty significant grant—and, quite possibly, one of the most important cases the Court will decide this term.

Earlier in the week, the Court handed down its second and third signed opinions of the term—with Justice Kavanaugh writing for a unanimous Court in E.M.D. Sales, Inc. v. Carrera and Justice Kagan writing for a unanimous Court in Royal Canin U.S.A. v. Wullschleger. Both are relatively modest disputes; Carrera is about the burden of proof employers face in federal wage-related suits in trying to demonstrate that employees are exempt from the minimum-wage and maximum-hour rules of the Fair Labor Standards Act. And Wullschleger is about what happens to federal subject-matter jurisdiction when, after a case is removed from state court, a plaintiff amends their complaint to remove the federal claim that formed the basis of the removal. Lawyers will care a lot about both cases; the rest of the world, not as much.

The Court also sat for the first week of the January 2025 argument session, the highlight of which was Wednesday’s argument in Free Speech Coalition v. Paxton—a challenge to Texas’s law requiring websites providing adult consent to verify the age of those who visit them. The argument had a little bit of everything. But it seems likely to me that the Court will at least require the Fifth Circuit to apply more rigorous scrutiny to the law than it did when it upheld it—even if the justices allow for the possibility that the law will survive that scrutiny.

Other than Friday’s cert. grants, the only other orders out of the Court last week came in Monday’s regular Order List—which made very little news. Turning to this week, the Court is closed today. It will hand down a regular Order List tomorrow at 9:30 ET, followed by the last two days of the January 2025 argument session. There’s been no announcement that we should expect any opinions in argued cases. But unless the Department of Justice withdraws it (which might be what the Court is waiting to see), the Court will presumably at some point have to rule on the federal government’s pending emergency application in the Corporate Transparency Act case—which has now been fully briefed since last Monday.

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The One First “Long Read”: The Chief Justice’s Ceremonial(ish) Role at Inauguration

Later today, Chief Justice Roberts will swear President-Elect Trump in as the forty-seventh President of the United States. Whatever one thinks of that moment, the fact that we’ve come to expect the Chief Justice to perform this role is itself an interesting reflection on how the Chief Justice (and, through him, the Court) has come to play such a central role in memorializing, if not legitimizing, the transfer of power from one president to the next.

It didn’t start that way. When George Washington was sworn in as the nation’s first president on April 30, 1789 there was no Chief Justice. The Judiciary Act of 1789 was still almost five months away, and John Jay would not himself take the oaths of office as the nation’s first Chief Justice until October 19. Instead, Washington was sworn in by Robert Livingston, the Chancellor of New York. No one seemed to think that was an issue.

For a host of reasons, Washington sought to downplay the significance of his second inauguration in 1793. That may be part of why it was Associate Justice William Cushing who delivered the oath—not Jay. Indeed, it wouldn’t be until 1797, when John Adams was sworn into office as the second president, that the Chief Justice (Oliver Ellsworth) would be the one to administer the oath. Ellsworth’s involvement started a tradition in which the Chief Justice would deliver the oath as part of formal quadrennial inaugural ceremonies—a tradition that was reinforced by John Marshall, who delivered the oath at the next nine inaugurations—and that has remained unbroken ever since.

But when President William Henry Harrison became the first chief executive to die in office in 1841, it wasn’t the Chief Justice, or even a justice, who swore in Vice President John Tyler as his successor. (The Supreme Court was out of session at that point, and none of the justices were apparently in Washington.) Instead, Tyler was sworn in by William Cranch—the Chief Judge of the Circuit Court for the District of Columbia (the predecessor to today’s D.C. Circuit). Cranch would also administer the oath nine years later to Vice President Millard Fillmore, who succeeded President Zachary Taylor upon the latter’s July 1850 death. (Cranch, who was also John Adams’ nephew, thus became the only non-Chief Justice to swear in multiple presidents.)

None of these episodes were especially striking. Instead, the telling moment came in 1881—after the assassination of President James Garfield. Garfield’s Vice President, Chester A. Arthur, was initially sworn in by John Brady—a justice on the New York Supreme Court. But Arthur, who had weathered an “80-day crisis” while Garfield slowly succumbed to his injuries (or, more likely, to his doctors’ maladministrations), wanted to lend the U.S. Supreme Court’s imprimatur to his succession, so two days later, he had the oath re-administered by Chief Justice Morrison Waite. Waite’s swearing-in of Arthur, perhaps as much as any prior inauguration, reinforced the idea that it was the Chief Justice who gave the full measure of credibility to a president’s succession. Thus, when President Nixon resigned from office in August 1974, Chief Justice Burger rushed back from a foreign trip so that he could administer the oath to Vice President Ford.

To be sure, no one seriously argues that the President must be sworn in by the Chief Justice. Since Arthur in 1881, three presidents (Teddy Roosevelt, Calvin Coolidge, and Lyndon Johnson) have not been sworn in by the Chief Justice after succeeding a deceased predecessor. But we have come to assume that the Chief Justice has some special, symbolic role to play in confirming a president’s succession—so much so that, when Chief Justice Roberts stumbled over one line of the oath at President Obama’s first inauguration, the oath was subsequently re-administered in a private ceremony at the White House.

In all, it’s an interesting evolution in the normative relationship between the Chief Justice and transitions of power. Indeed, although we may generally view the Chief Justice’s involvement as purely symbolic, my own view is that it conveys something more—that those tasked with having the final say over the meaning of the Constitution also have a role to play in having a final say over the legitimacy of an individual’s accession to the highest office in the executive branch. We can hope that it is never a substantive role. But it’s a powerful—if subtle—reflection of just how much we have come to view the Court, and the Chief Justice as its representative, as a central player in the resolution not just of cases and controversies, but of elevations to the presidency even when elections were conclusively resolved at the ballot box.

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SCOTUS Trivia: The Vice-Presidential Oath of Office

Another subtle but significant reflection of the judicialization of the oath of office is the shift in who administers the oath of office to the Vice President-elect—with Justice Brett Kavanaugh scheduled to swear in Vice-President Elect J.D. Vance later today.

With a handful of exceptions, the historical tradition was for the Vice President-elect to be sworn in by the President of the Senate—either his predecessor as Vice President or the President pro tempore. Chief Justice Marshall swore in George Clinton as Jefferson’s second vice president in 1805, but that appears to be the only example of a vice president being sworn in by a Supreme Court justice before World War II. Indeed, it would be another 144 years before another vice president-elect would be sworn in by a Supreme Court justice—when Alben Barkley was sworn in as Harry Truman’s vice president by Justice Stanley Reed in 1949.

And yet, perhaps reflecting the same evolution described above, starting in 1973, a justice has sworn in every vice president except Walter Mondale in 1977 and Dick Cheney in 2005 (both of whom were sworn in by the then-Speaker of the House). The last time the Chief Justice swore in the Vice President was on January 20, 2001—when Chief Justice Rehnquist, who had played … something of a role … in the outcome of the 2000 presidential election, swore Cheney into his first term.

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1. Unlike “signed” opinions of the Court, there is no tradition, when the Court issues an unsigned order or unsigned ruling, of publicly accounting for the votes of all of the justices. Thus, unless enough justices publicly dissent such that we can discern the overall vote count, we can’t ever be sure that the Court is unanimous in these cases—even if it’s likely that it was.