Original Thought: Are Members of SCOTUS Judges or Justices? Both text of Constitution and early cases use both terms.

October 6th, 2009

Why are the Judges of the United States Supreme Court called Justices? In two separate places in the Constitution, members of the Supreme Court are clearly referred to as Judges. Elsewhere, the word “Justice” is used.

Article II, Section 2:

Judges of the supreme Court.”

Article III, Section 1:

“The Judges, both of the supreme and inferior Courts…”

BUT, Article II, Section 3 governing impeachment uses the term Justice:

“When the President of the United States is tried, the Chief Justice shall preside.”

Why Justice and not Judge? Should the Chief be referred to as a Justice, and the Associate Members be referred to as Judges?

Who is this Chief Justice character? Article III defines the commissions of the Judiciary to “Judges,” not Justices. And who should be the Chief Justice? Of course, history answered this question, but looking solely at the text of the 1787 Constitution leaves me scratching my head a bit.

Perhaps this is just a scriveners error. We know the drafter made several of these. I previously blogged about drafting errors in the Constitution of 1787. Is the nomenclature for members of the Supreme Court perhaps another faux pas?

Or perhaps the terms were interchangeable? I recalled there were some early SCOTUS opinions referring to the members of the Supreme Court as Judges.

To check, I searched the Westlaw Supreme Court database for:

judge /s wilson jay cushing blair rutledge iredell johnson patterson chase elsworth washington marshall johnson & da(aft 1790 & bef 1810)

For those of you fortunate enough never to have built a string search in westlaw, this looks for the word judge within the same sentence as the names of the first 15 Justices between 1790 and 1810.

Here’s a sampling of what I found:

The judges present were Chase; Johnson, Livingston and Todd.” Dawson’s Lessee v. Godfrey, 4 Cranch 321 (1808). Curious that there were only 4 Judges present to decide a case.

“MARSHALL, Ch. J. declared it to be the opinion of a majority of the judges, that this court has jurisdiction.” Matthews v. Zane, 4 Cranch 382 (1808)

“MARSHALL, Ch. J. (all the seven judges being present) delivered the opinion of the court as follows: viz.” Fitzsimmons v. Newport Ins. Co. 4 Cranch 185 (1808).

Judges Chase and Livingston dissented; and Judge Todd, not having been present at the argument, gave no opinion. So that this judgment is reversed by the opinions of Marshall, Ch. J. Cushing, Washington, and Johnson, Justices.” Croudson v. Leonard, 4 Cranch 434 (1808).

But, I also did a search for:


I wanted to see if they used the word Justice, and I found almost twice as many hits for Justice as for Judge. For example:

“Present, Cushing, Washington, Livingston and Johnson, justices.” Hodgson v. Marine Ins. Co. of Alexandria, 5 Cranch 100 (1809).

In one case, the Supreme Court used the terms interchangeably within the same paragraph:

Chase, Johnson, and Livingston, Justices, expressed themselves strongly against the practice of a judge’s leaving the bench because he had decided the case in the court below. Washington, Justice, said he should not insist upon the practice, if it should be generally abandoned by the judges. The whole six judges ( Todd, Justice, being absent) sat in the cause; so that the practice of retiring seems to be abandoned.” Rose v. Himely, 4 Cranch 241, (1808).

The members of the early Supreme Court, the closest link we have to that time, used the term interchangeably to sign their written opinions.

What does this mean? Are members of the Supreme Court Judges or Justices?

In the modern era, it makes no difference. Chief Justice Rehnquist was notorious for chastising a litigant if the litigant called him “Justice” and not “Chief Justice.” I’m not sure how kindly WHR would have taken to being called Judge Rehnquist.

I briefly checked Federalist 78 and Federalist 81, and it only uses the word “judge.”

I am likely to dig deeper into this, and may develop a law review article around this. I’d like to look how contemporary state supreme court referred to its members. Also, I’ll check out early founding documents and English courts. Maybe there was a difference.

But these are just my initial thoughts while typing late at night. Curiosity killed the cat I suppose. Anyone ever read anything about this?