In January, Chief Justice John Roberts swore in President-Elect Trump as the 47th 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 function is itself an interesting reflection on how the chief justice has come to play such a central role in memorializing, if not legitimizing, the transfer of power from one president to the next.
But 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 had not yet taken his own oath as the nation’s first chief justice. 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. It wasn’t until the 1797 inauguration of John Adams that the chief justice (Oliver Ellsworth) administered the oath. Ellsworth started a tradition that Chief Justice John Marshall continued, delivering the oath at the next nine inaugurations.
But when President William Henry Harrison became the first president to die in office in 1841, it wasn’t the chief justice, or even a justice, who swore in his successor. (The Supreme Court was out of session at that point, and none of the justices were apparently in Washington.) Instead, John Tyler was sworn in by William Cranch — the chief judge of the Circuit Court for the District of Columbia (today’s D.C. Circuit). Cranch later administered the oath to VP Millard Fillmore, who succeeded President Zachary Taylor upon the latter’s 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 readministered 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 Richard Nixon resigned from office in August 1974, Chief Justice Warren Burger rushed back from a foreign trip so that he could administer the oath to Vice President Gerald 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 after succeeding a deceased predecessor. But we have come to assume that the chief 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 Barack Obama’s first inauguration, the oath was subsequently readministered in a private ceremony at the White House.
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 legitimizing an individual’s accession to the nation’s highest office. 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 also of elevations to the presidency, even when elections were conclusively resolved at the ballot box.
Steve Vladeck is the Agnes Williams Sesquicentennial Professor of Federal Courts at the Georgetown University Law Center. A longer version of this article originally appeared in his weekly newsletter about the Supreme Court, One First.
