It seems that in testing your mastery of capitalization last week, we made an error of our own. The quiz’s final question used the phrase “Chief Justice of the Supreme Court.” A number of you wrote in to say that it should be “Chief Justice of the United States.” And so it should. But that wasn’t always the case.
Surprisingly, Article III of the U.S. Constitution makes no reference to the office. In fact, the word justice doesn’t even appear there. Article III’s sole reference to jurists of any kind is to “[t]he Judges, both of the supreme and inferior Courts.” The Constitution as a whole mentions the office only once, in Article I, Section 3, Clause 6 (on impeachment trials), which refers merely to “the Chief Justice”—without any prepositional phrase following: “When the President of the United States is tried, the Chief Justice shall preside . . . .”
The Judiciary Act of 1789, adopted some 15 months after the Constitution’s ratification, established the titles as “Chief Justice of the Supreme Court of the United States” and “Associate Justice of the Supreme Court of the United States.” At the urging of Salmon P. Chase, sixth Chief Justice, Congress changed the title to “Chief Justice of the United States” in the Act of July 13, 1866, c. 210 (now codified at 28 U.S.C. § 1). Regardless, Chase’s successor, Morrison Waite, was still nominated and commissioned as “Chief Justice of the Supreme Court of the United States.” It wasn’t until Grover Cleveland nominated Melville Fuller to replace Waite in 1888 that a Justice was actually commissioned under the “new” title (then 22 years old).
But discrepancies still exist. As the legal historian Charles Warren notes in The Supreme Court in United States History, “the statutes relating to the salaries of the Court [most authored after Fuller’s 1888 appointment] . . . all refer to ‘the Chief Justice of the Supreme Court of the United States.'”
By the way, Congress didn’t alter the formal title of an Associate Justice back in 1866—and still hasn’t. Those Justices are properly termed “Associate Justice of the Supreme Court.”
Since this whole discussion originated from a quiz on capitalization, it’s worth noting that when referring to Justices of the nation’s highest court, Justice is normally capitalized, even if no particular Justice is named.
Garner’s Dictionary of Legal Usage 153, 494 (3d ed. 2011).
Garner’s Modern English Usage 160 (4th ed. 2016).
If you enjoyed this lesson, check out the new Garner’s Modern English Usage mobile app, available on the App Store and Google Play. The app contains the full text of the 2016 4th edition, with over 8,000 entries and essays—plus 30 usage quizzes like this one, with immediate feedback and links to relevant entries for further guidance on each question.
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