Chief Justice John G. Roberts, Jr., right, administers the Constitutional Oath to judge Neil M. Gorsuch, left, with Louise Gorsuch, judge Gorsuch’s wife, center, holding the Bible, in a private ceremony attended by the Justices of the Supreme Court and members of the Gorsuch family, on April 10, 2017. The oath was administered in the Justices’ Conference Room at the Supreme Court Building. (Photo: Franz Jantzen, Collection of the Supreme Court of the United States)
With Neil Gorsuch sworn in as the 101st associate justice on Monday, the U.S. Supreme Court has finally ended its trying 422-day stint as an eight-member body. Part of the ceremony took place at the White House, a practice that has been frowned on in the past because of its partisan hue.
Following a private and untelevised ceremony at the Supreme Court presided over by Chief Justice John Roberts Jr., Gorsuch traveled to the White House for an oath-taking given by Justice Anthony Kennedy, for whom Gorsuch clerked 24 years ago. All other sitting justices also attended the Rose Garden ceremony.
“We are here to celebrate history,” President Donald Trump said triumphantly before the ceremony, adding that appointing Supreme Court justices is one of the most important acts of any president. “And I got it done in the first 100 days!”
Gorsuch spoke after taking the judicial oath, thanking Trump, Vice President Mike Pence, White House and Senate officials and staff, and his friends and former law clerks for their “tremendous and tireless support.” The event, Gorsuch said, reminded him “how outrageously blessed I am,” and he pledged to be a “faithful servant” of the U.S. Constitution and statutes.
The last two new justices— Sonia Sotomayor in 2009 and Elena Kagan in 2010—were sworn in privately at the court with a video feed, but not at the White House. Both also had more public investiture ceremonies at the court later in the term, as will Gorsuch. All other current justices, including appointees of presidents of both parties, were sworn in at the White House as well as at the court.
The recent trend away from White House swearing ceremonies for justices can be traced back to sentiments expressed by then-Justice John Paul Stevens in early 2009. He said the practice of justices going to the White House to be sworn in displays “incorrect symbolism” of being beholden to the president. When the ritual is over, Stevens said, “the justice is on his or her own.”
In his 2011 book “Five Chiefs,” Stevens recalled swearing in Roberts in 2005 at the White House in his capacity as senior justice after the death of Chief Justice William Rehnquist.
“Performing that duty presented me with a problem because I believe that the ceremony should take place at the Supreme Court whenever possible,” Stevens wrote. “The three branches of our government are separate and equal. The president and the Senate play critical roles in the nomination and confirmation process. After that process ends, however, the ‘separate but equal’ regime takes over.”
Stevens himself was sworn in at the court in 1975, with President Gerald Ford in attendance. In his book, Stevens said he stopped attending White House oath ceremonies for new justices after what he said were President Ronald Reagan’s “offensive and inappropriate” remarks at the White House ceremony for Kennedy in 1988. (According to Stevens’s book, Reagan “welcomed his new appointee as a judge who would follow the law rather than make it up.”)
Asked about the concern about White House participation, Carrie Severino of the conservative Judicial Crisis Network said Monday, “Judge Gorsuch is taking part in a longstanding tradition,” referring to the common practice of White House ceremonies prior to the most recent oath-takings.
Gorsuch, at 49 the court’s youngest justice, replaces the late Antonin Scalia and refreshes the power of conservatives on the court, though it is uncertain how often Gorsuch will echo Scalia’s votes in specific cases.
“Because of Judge Gorsuch’s commitment to judicial independence and the rule of law, Justice Scalia’s legacy will continue on the Supreme Court,”said Severino, a former clerk to Justice Clarence Thomas and a key player in the push to confirm Gorsuch.
Elizabeth Wydra of the liberal Constitutional Accountability Center said, “The burden remains on Gorsuch to prove that he will be a justice who fairly applies the law and the Constitution and does not, contrary to President Trump’s promises, just represent certain segments of the population.”
Joining the court in mid-term, Gorsuch will face oral arguments beginning next week, hearing cases ranging from patent law and class actions to church-state relations. By tradition, new justices do not vote on pending cases that were argued before they arrived , though no law or rule prohibits it.
Copyright the National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.