Yesterday on a whim, I blogged that NJ Governor Chris Christie should appoint Justice Alito as the next Senator from the Garden State. I was familiar with the incompatibility clause, and knew that members of the Court had served in the executive branch, but for some reason, I didn’t think a Justice of the Supreme Court held an “office under the United States.” I had a few reasons, albeit not-too-fleshed out.

First, I reasoned that because the Supreme Court is created by the Constitution, in contrast with the inferior courts, and it could not be said that Alito’s office was under the authority of the United States. This position is organic law, straight from the Constitution, not from any statute of the United States.

Second, a Justice’s tenure (good behavior) is distinctly different from all other officers of the United States, who served some kind of fixed term.

Third, the appointments clause separates the “Judges of the Supreme Court” from “all other Officers of the United States,” suggesting that they are different things:

by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

Although, one argument going the other direction, as pointed out by the ever-resourceful Garrett Epps, is that  Article III refers to the position a Justice holds as an “office”–though not an “office under the United States” (unclear if this distinction makes any difference).

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour

Fourth, I noted yesterday an early opinion by John Jay (who had served in the Executive Branch while on the Court), as recited by Joseph Story, suggesting that a judge on a lower court was not an “inferior officer” to purposes of the appointment clause.

So, with the answer less than clear, I did what everyone should do to resolve obscure, but fascinating questions about the meaning of “office under the United States.” I asked Seth Barrett Tillman. Within a matter of hours, Seth provided me with a five-page reply, which he has posted on SSRN. Remarkable.

Seth offers a number of ways to distinguish an “Officer under the United States” from a holder of a “Public trust,” including the manner in which the person obtains that position (election v. appointment), how the position is created (not by statute), and whether the person is subject to supervision in their normal course of duties. Seth finds that under two of these tests, a Justice would not be an officer of the United States for purposes of the incompatibility clause.

I don’t know that I’m persuaded by his arguments, or even my own, and think the idea of a Justice serving in the Senate is ridiculous (sitting in judgment of laws one passesd is absurd), but, the answer isn’t as open and shut as I previously thought.

Does anyone else have any thoughts?