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For the Supreme Court, Tradition Is on Tap at Inaugural
Legal Times
January 05, 2009
When John Roberts Jr. told the Senate in 2005 that judges should be like umpires, applying the rules of others, he added a touch of judicial modesty: "Nobody ever went to a ballgame to see the umpire."
On Jan. 20, the same might be said of Roberts himself: None of the millions of people gathering for Barack Obama's historic inauguration will be there to see the chief justice as he administers the oath.
Yet there Roberts will be, continuing a long tradition -- and it is only tradition, not law -- that joins the Supreme Court and the presidency at a crucial time of transition in the nation's life. Justice John Paul Stevens will also be featured as he swears in Joe Biden as vice president moments before Roberts swears in Obama.
For a branch of government that does not get out much, it is also a rare moment of visibility, when the public sees the black-robed enigmas who make up the Supreme Court -- some of them wearing funny black skull caps. More about the caps later, but the inauguration opens a window on how the fates of the two branches are intertwined.
For Obama and Roberts, the juxtaposition is striking. As a senator, Obama voted against Roberts' confirmation, asserting that "he has far more often used his formidable skills on behalf of the strong in opposition to the weak." And Obama stands poised, depending on vacancies, to populate the Supreme Court with colleagues who may cause Roberts grief.
But no one doubts that both men, with a keen sense of history and propriety, will carry out the ceremony with the cordiality that is the coin of the realm in Washington. If Roberts can shake hands with Justices David Souter and Stephen Breyer every day the Court is in session, he can grip and grin with Obama.
But if it turns out to be awkward, it won't be the first time.
The Bible that Obama has chosen for the ceremony was used in 1861 when Chief Justice Roger Taney swore in President Abraham Lincoln. The two men loathed each other, and to some eyewitnesses it showed. Lincoln had attacked Taney's pro-slavery Dred Scott decision during the campaign.
In 1997, Chief Justice William Rehnquist swore in President Bill Clinton for his second term, just days after the justices had taken a private vote on Clinton v. Jones. The decision exposed Clinton to the Paula Jones sexual harassment and civil rights lawsuit during his presidency -- a ruling that triggered a cascade of events that two years later found Rehnquist presiding over Clinton's impeachment trial. Rehnquist offered Clinton an ominous "good luck" after the oath was over, while Justice Ruth Bader Ginsburg had been more cheery after swearing in Al Gore as vice president. "Every good wish," she whispered.
The two branches were also intertwined in 1973 when Chief Justice Warren Burger swore in President Richard Nixon, who had been re-elected as the Watergate scandal was snowballing. Though neither knew it, 19 months later Burger would author the decision in United States v. Nixon that forced Nixon to turn over Watergate tapes.
Nixon's first inaugural in 1969 was "perhaps the most awkward pairing" of them all, in the view of University of Southern California historian Mary Dudziak. Campaigning on a law-and-order platform, Nixon had railed against Earl Warren's pro-defendant rulings. Warren had announced his retirement, but President Lyndon Johnson's ill-fated nomination of Abe Fortas to replace him left Warren still in office to swear in Nixon.
'SO HELP ME GOD'
The Supreme Court and the president have been joined at inaugurals almost from the beginning of the nation. George Washington, who took office before the Supreme Court was in business, was never sworn in by a chief justice but almost all presidents since then have been -- except when an emergency arises.
The first outdoor inauguration, James Monroe's in 1817, took place at the Old Brick Capitol -- the site that became, more than a century later, the home of the Supreme Court.
The last time someone other than the chief justice swore in a president came in 1963 after the assassination of John F. Kennedy. Dallas federal Judge Sarah Hughes, the only woman to swear in a president, was located swiftly after the assassination and agreed to administer the oath to Johnson aboard Air Force One.
Hughes knew the oath from the Constitution itself, but according to an oral history interview she gave at the Johnson library, she impulsively added the phrase "so help me God" to the end -- as many other oath-givers before and since have done.
California lawyer Michael Newdow, whose case challenging the words "under God" in the Pledge of Allegiance went before the Supreme Court, sued in federal court Dec. 30 to enjoin Roberts from adding "so help me God" to the oath for Obama on Jan. 20.
Johnson's 1965 inaugural marked a change in tradition that diminished the Supreme Court's role in the inauguration somewhat. Johnson's wife, Lady Bird, held the Bible during the swearing-in, a job previously reserved for the clerk of the Supreme Court.
C. Elmore Cropley, the Court clerk who held the Bible for President Franklin Roosevelt's third inauguration in 1941, is remembered for a dubious distinction -- he dropped the Bible after the oath was given. A sequence of photos chronicling the mishap, as well as Cropley's self-conscious smile when he recovered, filled a full page of Life magazine the next week.
CAP OFF
The chief justice is not the only member of the Court caught up in inaugural ceremonies. Associate justices often swear in the vice president, though a variety of others, including Senate presidents, House speakers, predecessors, and others have done the honors over the years.
The rest of the Court is also counted among the VIP contingent with the very best seats and access to the ceremonies. The papers of justices are full of memos and invitations spelling out logistical details, as well as invitations to inaugural galas and events. "Justice and Mrs. Blackmun will attend the breakfast, the swearing-in ceremony, and the luncheon (but may cancel themselves out of the swearing-in ceremony if it is terribly cold if that's alright with you)" reports one 1997 memo in the late Justice Harry Blackmun's papers at the Library of Congress.
If you can spot them in the crowd on the inaugural platform, the justices are often animated, like schoolchildren let out to play -- and they are striking with their black robes and black caps.
The mysterious black skullcaps have gone in and out of vogue with the justices since the early 20th century. They are not for inaugurals only -- at least four justices wore them at the laying of the Supreme Court cornerstone in 1932 -- but seem to be deployed mainly during cold weather. Brimless silk or wool skullcaps, often cornered to give them shape, have been occasionally associated with British judicial garb since the 15th century, but the Court curator's office says "there does not appear to be a direct lineage" from Britain to Supreme Court use.
Chief Justice Edward Douglas White wore one when swearing in President Woodrow Wilson in 1913 -- the first time a skullcap was documented in an inaugural photo. Chief Justice William Howard Taft also wore a skullcap during the ceremonies for Presidents Calvin Coolidge and Herbert Hoover. Their heyday came in 1961 for Kennedy's inaugural when seven of the nine justices wore skullcaps. It might have been eight, but a memo reports that Tom Clark's cap was too small. "For the next inauguration get Mr. Justice Clark a size 7 3/8 skullcap," a note suggests.
Memos about skullcaps fill the Blackmun files throughout the 1970s and 1980s, with one even suggesting how they should be doffed and held during the National Anthem. But the caps were not worn widely again until after Rehnquist, a history buff extraordinaire, became chief justice in 1986. Whether Roberts, Rehnquist's successor and former law clerk, carries on the tradition is uncertain. During the last inaugural, two justices -- Breyer and Antonin Scalia -- wore them, while Ginsburg donned a black fur hat and the ailing Rehnquist wore a black golf-style cap.
Six inaugurations earlier, Blackmun seemed immune from the skullcap trend altogether. A December 3, 1980, memo from then-marshal Alfred Wong told the justices "it will be necessary for the Court to be in full formal dress .--- including skull cap, if that is the individual choice. If you are in need of a new cap, please notify this office prior to December 15, including your head size, and we will arrange to have one made."
In the margin Blackmun -- who usually marked up incoming memos extensively -- penciled in only a large question mark. He was not impressed.
