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Chief Justice of the Supreme Court:

The N.Y. Times just published this correction (thanks to How Appealing for the pointer):

An article on Saturday about the variety of fashion choices made by New York City's judges misstated the title once held by two former United States Supreme Court justices — John Jay, who was often pictured wearing a scarlet and black robe with silver trim, and John Marshall, who departed from tradition by wearing a plain silk black robe. They were chief justices of the United States — there is no such title as chief justice of the Supreme Court.

It's true that the U.S. Code almost exclusively (with one minor exception) labels the Chief Justice as "the Chief Justice of the United States." But in fact he is also the chief justice of the Supreme Court — there is a Supreme Court, there are justices of it, and he is the chief justice among them. (Note that the original article spoke of "the chief justice of the Supreme Court," with "chief justice" in lower case. That suggests the article was describing the office, and not giving an official title; if it were capitalized, that might be more ambiguous as to whether it's a description or a title, though even there it could be read as a description.) So whatever the official title may be, "chief justice of the Supreme Court" is a perfectly proper locution.

But this isn't just my view. It's also George Washington's, speaking to John Jay himself when Jay was first appointed: "Sir, It is with singular pleasure, that I address you as Chief Justice of the Supreme Court of the United States, for which office your commission is enclosed." ("Chief Justice of the Supreme Court" would be a naturally abbreviation for that.) It's also Hamilton's or Jay's in Federalist No. 65, which spoke of the proposed Constitution's "making the chief justice of the Supreme Court the president of the court of impeachments."

It's St. George Tucker's view in his Appendix to his highly influential 1803 edition of the Blackstone's Commentaries (in turn quoted by Chief Justice Joseph Story in his highly influential 1833 Commentaries on the Constitution), where Tucker spoke of how "the constitution expressly requires that the chief justice of the supreme court shall preside" at an impeachment trial. It's the view of the Congress that enacted the Judiciary Act of 1802, which spoke of "the present chief justice of the supreme court" (who at the time was Chief Justice Marshall). It's the view at least at times of Chief Justice Marshall himself, who signed some documents, "Witness the honorable John Marshall, chief justice of said supreme court." And these are just early examples; there are lots more from later decades.

So if you want to tell all these people that their usage was invalid, or is no longer valid because of what intervening Congresses have done, be my guest. (You can't tell them that their usage is no longer valid because actual usage has changed, since in today's actual usage "chief justice of the Supreme Court" is quite common, and in fact a little more common than "chief justice of the United States," as either a Google search or a Nexis search will confirm.) But I can't see why the rest of us should be persuaded of this, and should reject the judgment both of modern usage and of historical usage (buttressed by the normal presumptions of English phrase formation). This latter judgment, I think, is that both "chief justice of the Supreme Court" and "chief justice of the United States" are perfectly correct.

Sigivald (mail):
You can't tell them that their usage is no longer valid because actual usage has changed, since in today's actual usage "chief justice of the Supreme Court" is quite common, and in fact a little more common than "chief justice of the Supreme Court," as either a Google search or a Nexis search will confirm.

I'm guessing that the two things being compared weren't meant to be identical...?
9.10.2008 2:31pm
Timothy Sandefur (mail) (www):
I understand there was once quite a controversy in the Seventeenth Century over a similar issue--whether Sir Edward Coke was allowed to style himself "Chief Justice of England" or only "Chief Justice of King's Bench." I believe I read this in The Lion And The Throne by Bowen. Anyone have recollection of this?
9.10.2008 2:34pm
OrinKerr:
Wikipedia says it's incorrect, though. Who are we to question Wikipedia?
9.10.2008 2:36pm
Alex Blackwell (mail):
In my opinion, the NYT correction isn't exactly "correct":

Actually, both John Jay and John Marshall were contemporaneously commissioned as Chief Justice of the Supreme Court of the United States. The official change in title did not occur until enactment of a judiciary bill in 1866, at the suggestion of then-Chief Justice Salmon Chase. In fact, Chief Justice Melville Fuller was the first to be commissioned, in 1888, under the current designation Chief Justice of the United States.

See

"Chief Justice of the United States:" History and Historiography of the Title
by Josiah M. Daniel, III
Supreme Court Historical Society Yearbook 1983
9.10.2008 2:37pm
Terrivus:
I can't see why the rest of us should be persuaded of this, and should reject the judgment both of modern usage and of historical usage.

Or -- and here's a crazy idea -- how about we be persuaded by what's actually written down in the text of the laws? On the question of what is the correct title, if the U.S. Code calls it "Chief Justice of the United States," that should be the end of it, notwithstanding common or historical usage of other forms.

Do you think we should reject the plain, unambiguous text of other portions of the U.S. Code because of "modern usage" and "historical usage"? Or do words actually mean what they say?

Sheesh, no wonder the "living Constitution" movement is alive and well.
9.10.2008 2:50pm
Anderson (mail):
Sure, and Bush is President of the Executive Branch.
9.10.2008 2:52pm
Dilan Esper (mail) (www):
This is reminiscent of the people who get mad when you call the US a democracy, saying "we're a republic, not a democracy". There's some technical truth to it, but it's really not the sort of issue to get all hung up about (unless, perhaps, the discussion really did concern the Chief Justice's non-Supreme Court duties, such as chairing a presidential impeachment trial or leading the Judicial Conference).
9.10.2008 3:02pm
Hoosier:
OrinKerr:
Wikipedia says it's incorrect, though. Who are we to question Wikipedia?


We cannot ever question it. But we can change it. I'll get to that momentarilly.

Question that sounds snarky, but isn't: Does the Times ever correct a correction?

Dilan Esper: I respond to such people in one of two ways: Either I say that the US is in fact a democratic republic. Or else I go to Barnes and Noble, rip the subscription cards out of a couple dozen magazines, and have them sent to the person's home.

So either of those replies usually works.
9.10.2008 3:10pm
Snaphappy Fishsuit Mokiligon:
How about this:

"Oyez! Oyez! Oyez! The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court."

If it were accurate, it would say, "Oyez! Oyez! Oyez! The Honorable, the Chief Justice of the United States and the Associate Justices of the Supreme Court of the United States. . . ."
9.10.2008 3:16pm
Oren:
Words and phrases carry different levels of specificity depending on their context. For everyday use, 'democracy' and 'republic' are interchangeable in a way they are not in a comparative government class. Similarly, 'mass' and 'weight' are interchangeable everywhere but the science building.

A long time ago, I had a real stick up my butt over the use of the words 'unipolar' and 'multipolar' by social-sciences folks since, as any student of geometry knows, poles are defined as the intersection of an axis through a sphere -- i.e. you can't have more than two. I would suggest 'multilateral', since polygons and polyhedra can have arbitrary numbers of sides. Since then I've mellowed out on that particular usage -- you can have as many poles as you want, even if it doesn't make any sense.

Now, if we could only get commensurate/commensurable right!
9.10.2008 3:24pm
Anderson (mail):
Hoosier: Or else I go to Barnes and Noble, rip the subscription cards out of a couple dozen magazines, and have them sent to the person's home.

So it's YOU!

Orin: A long time ago, I had a real stick up my
butt


TMI.
9.10.2008 3:36pm
David Schwartz (mail):
2 USC 135: "... by the Chief Justice of the Supreme Court."
9.10.2008 3:52pm
Jon Rowe (mail) (www):
I had a professor who insisted "United States Supreme Court" was incorrect, that it was always "Supreme Court of the United States." Similarly, I had never seen this quotation from Washington before so I googled it and found it nowhere except linked to this site.

The actual quotation uses a colon instead of a comma, not that I think it makes any difference except when dealing with exact quotations and search engines:


Sir: It is with singular pleasure that I address you as Chief Justice of the Supreme Court of the United States, for which Office your Commission is enclosed.
9.10.2008 3:57pm
steve lubet (mail):
Note that under Article II, "The President shall be Commander in Chief of the Army and Navy of the United States." Thus, the President is not the Commander in Chief of the United States, but only of the armed forces. It would seem consistent, therefore, to refer to the Chief Justice of the Supreme Court of the United States -- or Supreme Court for short.

Note also that Article I provides only that the "Chief Justice" shall preside over presidential impeachments, with no further elaboration (neither chief justice of the Supreme Court, nor chief justice of the United States).
9.10.2008 4:04pm
Steve:
Cf. "Grand Central Terminal" vs. "Grand Central Station."
9.10.2008 4:05pm
J. Aldridge:
Implying there is a "chief justice of the United States" would be as ignorant as implying there is a "chief justice of the world." The many United States have their own individual "chief justices."
9.10.2008 4:23pm
Crunchy Frog:
A station, much like an airport, may have many terminals.

Poland has many Poles, some number (more than two) of which are not currently in Poland.

Aside from "Chief Justice of the United States" being the correct Final Jeopardy answer (phrased in the form of a question, dontcha know) who cares?
9.10.2008 4:26pm
Snaphappy Fishsuit Mokiligon:
Crunchy frog: I always wanted to go on Jeopardy and, rather than using the artificial "Who is ___?"; "What is___?" form of question, use much more varied and humorous forms, which technically are questions. E.g.:


Is it "Chief Justice of the United States"?

What is a completely useless fact about _____?

________, don't cha know?



Alternatively, you could use the wrong question words:


What is Chief Justice Roberts?
Who is Nebraska?
How is Abraham Lincoln?


I got this stupid idea when I saw someone say "Is it ___?" in Final Jeopardy and Trebeck counted it.
9.10.2008 4:39pm
Sasha Volokh (mail) (www):
Snaphappy: I tried to do this on the actual Jeopardy!
9.10.2008 4:43pm
Oren:
I should add that the phrase "real stick up my butt" is also required to be read in context. It's quite different on a legal commentary blog than in, say, the chambers of an Idaho Senator.

Aldridge, perhaps you care to comment on Art I "The Senate of the United States shall be composed of two Senators from each State . . . " when the various States also had their respective Senates at the time? The text of the Constitution always uses "thereof" or "respective" to indicate the bodies of the various States and "The" to indicate the equivalent Federal body. Why should the CJ get short shrift in this regard?
9.10.2008 5:00pm
Cornellian (mail):
This makes me wonder about the strange American habit of granting political titles for life, e.g. calling someone "Mr. President" or "Senator so-and-so" many years after the guy left office. Do we do the same for retired judges? And why do we do it for anyone? I think former presidents should be addressed as "Mr. Clinton" "Mr. Bush" etc. Calling them "Mr. President" for life sounds disturbingly royalist to me. Ditto for senators, governors etc.
9.10.2008 5:29pm
Eugene Volokh (www):
Terrivus: The law can dictate the official title of a person. But it can't dictate the proper colloquial way of referring to the person. Congress has no more power over the English language than you or I. The Constitution labels us the United States of America, but that doesn't make it wrong to call us "the United States," "the U.S.," "America," or "the States" (though in certain circumstances some of these terms may be ambiguous and therefore not optimal).

Jon Rowe: I was quoting The Writings of George Washington: Being His Correspondence, Addresses, Messages, and Other Papers, Official and Private ..., vol. 10, p. 35, Boston: American Stationers' Co., 1834-1837, and that has a comma following the "Sir." Of course, I can't be sure of the original punctuation without seeing the original handwritten letter.
9.10.2008 5:35pm
Mark Field (mail):

I respond to such people in one of two ways: Either I say that the US is in fact a democratic republic. Or else I go to Barnes and Noble, rip the subscription cards out of a couple dozen magazines, and have them sent to the person's home.


And here I thought the right way was to engage people in discussion on the internet. Isn't that how most people acknowledge the error of their ways and change their minds?
9.10.2008 5:48pm
CDU (mail) (www):
Oren:
as any student of geometry knows, poles are defined as the intersection of an axis through a sphere -- i.e. you can't have more than two.


Perhaps you ought to consult a geographer rather than a geometer. The Earth has at least four poles: the geographic north pole, the geographic south pole, the north magnetic pole, and the south magnetic pole. Furthermore, the geographic pole defined by the earth's axis of rotation (which varies) is slightly different than the pole geographic defined by the International Terrestrial Reference System (which is fixed to provide a consistent basis for measurement).
9.10.2008 6:00pm
TCO:
What a fucking useless post. Seroiusly, step back and think about this. What are you going to do next? Arguments about which way the toilet paper roll should run? Heck, that would be better. Trivial, but at least connected. Now get back to Palin discussion. Chop, chop!
9.10.2008 6:26pm
Oren:
CDU, two poles at a time for any particular description. Two magnetic poles, two geographic poles, etc . . . This usage is, I'm told, the only one consistent with the ancient greek origin of the word.
9.10.2008 7:49pm
TCO:
only one use suggests itself for the pole pedants...
9.10.2008 7:56pm
mariner (mail):
Professor Volokh,

Thanks for explaining this.
9.10.2008 7:59pm
Anderson (mail):
The Earth has at least four poles

More like 60 million, since we're agreed that Wikipedia can't be wrong.
9.10.2008 8:12pm
Hoosier:
"Mark Field (mail):


I respond to such people in one of two ways: Either I say that the US is in fact a democratic republic. Or else I go to Barnes and Noble, rip the subscription cards out of a couple dozen magazines, and have them sent to the person's home.


And here I thought the right way was to engage people in discussion on the internet. Isn't that how most people acknowledge the error of their ways and change their minds?"

In response to Mark Field, and with apologies to Heisenberg, I present: "Hoosier's Certainly Principle"--No one has ever changed their opinion on any matter as a result of anything they have ever seen on a blog.


I have the equations to *prove this,* too. But even if I posted them, none of you would actually *look* at them.
9.10.2008 8:13pm
Hoosier:
" How is Abraham Lincoln?"


I don't know how to break this to you . . .
9.10.2008 8:14pm
Mark Field (mail):
In response to Mark Field, and with apologies to Heisenberg, I present: "Hoosier's Certainly Principle"--No one has ever changed their opinion on any matter as a result of anything they have ever seen on a blog.

I have the equations to *prove this,* too. But even if I posted them, none of you would actually *look* at them.


I can prove it too, but the internet is too small to contain my proof.
9.10.2008 8:45pm
Hoosier:
Mark Field

This reminds me: I heard you had some good news and some bad news. I was happy to hear that your cat is still doing well, but sorry that it also died. You'll have to give it a new ball of yarn after you bury it.
9.10.2008 11:10pm
wolfefan (mail):
Hi -

May I say that Mark Field and Hoosier are among two of the reasons that I continue to stick with this blog through it's recent madness. If I can just make it through the next couple of months, it'll be four years 'til I have to do it again. In the meantime, thanks to both of you, gentlemen...
9.10.2008 11:57pm
Soronel Haetir (mail):
Oren,

You are going to be mighty disappointed if magnetic monopoles are ever found/created.
9.11.2008 12:09am
pluribus:
Cornellian:

This makes me wonder about the strange American habit of granting political titles for life, e.g. calling someone "Mr. President" or "Senator so-and-so" many years after the guy left office. Do we do the same for retired judges? And why do we do it for anyone? I think former presidents should be addressed as "Mr. Clinton" "Mr. Bush" etc. Calling them "Mr. President" for life sounds disturbingly royalist to me. Ditto for senators, governors etc.

With respect, what is royalist about this practice? These titles were earned, not inherited from an ancestor. These are titles conferred by a self-governing people, not imposed by an aristocratic elite.

In my opinion, continuing use of these titles (on a purely honorary basis, of course) signifies the respect and honor we accord government officials. Lack of respect breeds cynicism and all that flows from it. In the middle of the 19th century, the title of "judge" was highly respected. Less so today, when judges are routinely excoriated as "tyrants in black robes." Lincoln always referred to his opponent in the Lincoln-Douglas debates as "Judge Douglas," though Douglas was then a United States Senator. I have also found many examples of the use of "Judge" as a title for a lawyer of some repute in the 19th and early 20th centuries. Washington, Jackson, Grant, and Eisenhower were customarily referred to as "General," even after they became president. This is evidence of the respect people accorded their military titles. (It was as a general, of course, that Washington led the United States to independence and self-government.) Salmon Chase had the title of "Chief Justice of the Supreme Court" changed to "Chief Justice of the United States" because he was a vain man. Earl Warren bore the same title, though he was not a vain man.
9.11.2008 10:59am
Oren:

You are going to be mighty disappointed if magnetic monopoles are ever found/created.

I'll take that chance.
9.11.2008 1:12pm
r.friedman (mail):
We know from The Brethren that it was Warren Burger who started making it a big thing that we was Chief Justice of the United States, not of the Supreme Court. And if I remember correctly, we have some similar self-aggrandizement from Rehnquist.
9.11.2008 3:06pm
Joseph Story:
The original post got my title wrong. I was never chief justice of the Supreme Court OR the United States.

-- J. Story
9.11.2008 4:03pm
pluribus:

We know from The Brethren that it was Warren Burger who started making it a big thing that we was Chief Justice of the United States, not of the Supreme Court. And if I remember correctly, we have some similar self-aggrandizement from Rehnquist.

To be honest about it, it is a pretty big thing, isn't it?
9.11.2008 6:12pm