82. The Supreme Court's Four Officers

A new Supreme Court librarian provides an opportunity to look at the Court's role in appointing its own officers—and how that might play into proposals to create an Article III Inspector General

May 27, 2024

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 (including holidays, like today), 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):

It’s been a little while since I focused on a topic unrelated to recent decisions/behavior by the justices, but I thought I’d use the excuse of the appointment earlier this month of a new Supreme Court Librarian, David S. Mao, to take a look at an obscure but potentially significant topic: The Supreme Court’s statutory “officers,” and its power to control their appointments.

But first, the news.

On the Docket

After another unusually quiet Order List (with no separate opinions and no grants of new cases for next term—leaving the Court stuck at the remarkably low total of eight grants to this point), the bulk of the news from the Court last week came in Thursday’s three decisions in argued cases (one of them, in particular):

In Coinbase v. Suski, Justice Jackson, writing for a unanimous Court, held that, when parties enter into two separate agreements, one of which says that an arbitrator will decide if disputes between them are subject to arbitration, and one of which says that a court will decide, a court (and not an arbitrator) must decide the antecedent question of which contract governs (and, thus, whether a court or arbitrator gets to decide whether the underlying dispute will be arbitrated or resolved in court). Yes, this is a fourth-order question. But Justice Jackson’s eight-page opinion answers it quite accessibly.
Brown v. United States produced a somewhat unusual 6-3 split in a criminal case. At issue was the federal Armed Career Criminal Act (which, among other things, increases the potential sentences for federal crimes by individuals with certain prior convictions, including a “serious drug offense”). The complication in the two cases the Court consolidated in Brown is that, although both defendants’ prior state convictions had qualified as “serious drug offenses” under federal law at the time of those convictions, they did not still qualify as such at the time of the later federal convictions because of intervening changes in the relevant federal definitions. Writing for the majority, which included Chief Justice Roberts and Justices Thomas, Sotomayor,1 Kavanaugh, and Barrett, Justice Alito held that all that mattered was whether the defendants’ prior offenses qualified at the time they were committed, not at the time of the new federal offense. Justice Jackson, joined by Justice Kagan in full and Justice Gorsuch in principal part, dissented.
But the biggest headline, by far, was the Court’s 6-3 decision in Alexander v. South Carolina State Conference of the NAACP—only the second “major” case the Court has decided so far this term (along with February’s ruling in the Colorado ballot disqualification decision). Splitting right down ideological lines, Justice Alito wrote for the Court’s Republican appointees in reversing a three-judge district court and upholding the map for South Carolina’s (U.S. House) District 1 against a racial gerrymandering claim. There’s a lot to say about this ruling, some of which I’ll hope to cover in a future issue. For now, three things stand out: First, Justice Alito’s majority opinion, as Justice Kagan’s dissent quite pointedly highlights, is perhaps most significant in the long term for how it appears to put a lot more teeth into “clear error” review (the idea that appeals courts shouldn’t disturb factual findings by district courts unless it is clear that they are wrong). This shift will empower all appeals courts, in all cases, to show less deference to factual findings by their trial court colleagues—a move that could cause all kinds of mischief in cases far removed from congressional redistricting. Second, within that specific subset, the Court’s ruling will almost certainly make it harder for racial gerrymandering challenges to succeed, given how much the majority opinion repeatedly bends over backwards to give the state the benefit of the doubt. Third, although he wrote just for himself, there is something truly stunning about Justice Thomas’s solo concurrence, which argues not only that the Court should never have gotten involved in racial gerrymandering claims in the first place, but even takes a shot at Brown v. Board of Education in the process. Among lots of other things, one question Thomas doesn’t answer is why, if governmental racial classifications should be left to the political process in the context of redistricting, it ought not to be in the context of public university admissions, as well. In the short term, Alexander will have no effect; South Carolina was already set to use its map for District 1 this November. But in the long term, we may come to see Alexander as a harbinger for lots of other potentially onerous developments in both appellate procedure and constitutional substance.

The Court is closed today for the holiday, but we expect a regular Order List out of last Thursday’s Conference (including, as John Elwood notes in his “Relist Watch,” some potential grants for next term) at 9:30 ET tomorrow. And the Court has also announced that it is “likely” to hand down one or more opinions in argued cases starting at 10:00 ET this Thursday. Of the “major” cases still to be decided, the only one left from the October or November argument sessions is Rahimi—about whether the Second Amendment bars Congress from making it a crime to be in possession of a firearm while subject to a domestic violence-related restraining order.

The One First “Long Read”: Officers of the Court

On May 7, the Supreme Court issued a completely innocuous press release, announcing the appointment of David S. Mao, previously the Chief Operating Officer at my new employer (Georgetown University Law Center) as the 12th Librarian of the Supreme Court as of July 1, 2024. The Supreme Court Library is one of the true hidden gems of Washington—a beautiful facility with a remarkably large and diverse collection (almost 650,000 volumes) for a single court. And I’ll just add, from personal experience, that the folks who work there are among the nicest and most helpful I’ve encountered in my career.

Although there is nothing especially newsworthy about Mao’s appointment, the release reminded me of a topic I’d been meaning to write about for some time: The Court’s role in the appointment of its own officers. By statute, Congress has created four offices within the Supreme Court other than the nine held by the justices: Clerk, Marshal, Reporter of Decisions, and Librarian.2 Each of these offices has fixed duties prescribed by statute, such as the requirement that the Clerk “pay into the Treasury all fees, costs, and other moneys collected by him”; that the Marshal do lots of things, including “Attend the Court at its sessions”; that the Reporter “prepare the decisions of the Court for publication in bound volumes and advance copies in pamphlet installments”; and that the Librarian “select and acquire by purchase, gift, bequest, or exchange, such books, pamphlets, periodicals, microfilm and other processed copy as may be required by the Court for its official use and for the reasonable needs of its bar.”

None of these are especially intrusive requirements, of course. But they’re interesting examples of how Congress has, historically, created offices within the Supreme Court and prescribed at least some of those officers’ duties. Indeed, although the Marshal, Reporter, and Librarian came later, the position of Clerk was provided for in section 7 of the Judiciary Act of 1789 itself.

Under the statutes as they currently exist, each of these four officers is appointed (and subject to removal) by “the Supreme Court,” which certainly seems to satisfy the Appointments Clause of Article II (“the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”). Thus, although there is a rich academic debate over whether Congress can authorize the Chief Justice, alone, to exercise various of the other powers it has delegated to him by statute,3 at least in the case of these four officers, there’s no serious Appointments Clause issue regarding their appointment, and no separation-of-powers issue concerning their removal. They’re inferior judicial officers subject to appointment and removal by the same Court.

The question, then, is whether the existence and history of these four offices could provide a useful precedent on which Congress could rest the creation of a fifth Supreme Court office, an Article III Inspector General. It seems to me that the answer, at least as a matter of constitutional law, is clearly “yes.” So long as the Inspector General (1) is appointed by the Court; (2) is subject to removal by the Court; and (3) is not in a position in which he is able to override any decisions by the Court or impose discipline on justices for any behavior in violation of the applicable rules and regulations, it seems difficult to me to see how there would be constitutional objections to such an office that wouldn’t also run to these existing offices. A different issue might arise if Congress were to impose limits on that officer’s removal (e.g., “for cause”). But even that constraint could come with a severability clause—so that the rest of the mechanism would survive even if a for-cause removal constraint was deemed unconstitutional.

Of course, the devil is in the details, some of which I (and others) have tried to sketch out in writing; others of which might still have to be fleshed out. The point is not that an Article III Inspector General would necessarily be a good thing, or that the constitutionality of such an officer would follow from the existence of these four offices; it’s more modest: There is a rich history of Congress creating offices within the Supreme Court (and the federal judiciary, more broadly) and imposing mandatory duties on those officers. That history can (and, in my view, should) provide at least a baseline from which proposals to create some kind of ethics supervision mechanism could be grounded.

SCOTUS Trivia: The First (Temporary) Clerk

The Court’s current clerk, Scott Harris, is the 20th person to formally hold that office (the next woman will be the first). The very first of the 20 was John Tucker, who had been serving as the Clerk of the Massachusetts Supreme Court, and was appointed as the Court’s first Clerk on the second day of its first official sitting, on February 3, 1790.

But because it took a properly constituted Court to appoint Tucker, someone had to act as clerk until Tucker could be appointed. That duty apparently fell to John McKesson, then the Clerk of the New York Supreme Court.4 It was McKesson, not Tucker, who noted the absence of a quorum on February 1, 1790, and who read the commissions of the justices into the record the next day—thus opening the Court’s first official session.

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To my mind, Justice Sotomayor’s vote is what makes this a strange lineup. It’s not at all unusual for Justice Gorsuch to resolve ambiguities in federal criminal statutes in favor of the defendant, even when the other Republican appointees don’t. But it’s a bit unusual that Justice Sotomayor didn’t.

There are other positions at the Court provided for by statute (such as the justices’ law clerks; secretaries; and the Counselor to the Chief Justice). But historically, it’s these four positions that have been treated as offices (as opposed to staff positions not subject to the Appointments Clause).

For a full flavor of the scope of the issue, my two favorite pieces are this 2006 University of Pennsylvania Law Review article by Professor Judith Resnik and (my law school classmate) Lane Dilg, which includes, in Appendix B, a remarkable list of all of the Chief Justice’s statutory appointment/assignment responsibilities, and a 2013 Northwestern University Law Review article by Professor Jim Pfander (which, among other things, disagrees with some of Resnik and Dilg’s analysis).

New York’s highest court wouldn’t be known as the “Court of Appeals” until 1870—when a constitutional amendment restructured the state courts and made the Court of Appeals (created by the state constitution in 1846) supreme over even the existing “Supreme Court.”