August 7th, 2010
09:34 AM ET
4 years ago

Facts about Supreme Court oath ceremonies

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Elena Kagan was confirmed by the Senate on Thursday. (PHOTO CREDIT: Getty Images)

Washington (CNN) - Elena Kagan was confirmed by the Senate on Thursday to become the 112th justice on the Supreme Court. Here is a look at what happens next:

Q: With the Senate vote, is Kagan now officially a justice?

CNN: No, the final step in the confirmation process involves President Obama issuing a written commission to his nominee, who then must take two oaths of office before assuming her official duties.

Q: What is the wording of the oaths?

CNN: The Constitutional Oath is required of all federal employees. That includes members of Congress, and top executive branch and judicial officers. State legislators, governors, and judges take a similar oath to uphold and support the U.S. Constitution. The President has a separately worded oath, specifically written in the Constitution. Here is the oath Kagan will take:

"I, ------, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

The second, Judicial Oath, is mandated in the Judiciary Act of 1789, which reads, "the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices" must take this affirmation. Now, every federal judge takes this oath, including those in appeals, magistrate, and bankruptcy courts. This oath has been revised over the years. The current version passed by Congress in 1990 took out the phrase "according to the best of my abilities and understanding, agreeably to the Constitution," and replaced it with "under the Constitution."

"I, ------, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ------ under the Constitution and laws of the United States. So help me God."

Q: Who administers the oath of office?

CNN: The chief justice of the United States (that's his official title) traditionally administers the oaths, but almost any federal, state, or local
officer can perform the duty, including clerks of court. The law makes no special mandate. In 1789, Justice James Wilson was sworn in by the mayor of Philadelphia, Pennsylvania, where the court first sat. Thurgood Marshall, the nation's first African-American justice, took the Constitutional Oath in 1967 from Associate Justice Hugo Black, an Alabaman. Marshall later took the Judicial Oath in the courtroom, from the clerk of court.

Q: Are there any special traditions surrounding the ceremonies?

CNN: Some swear-in ceremonies are private, some public. Some happen inside the court's building on Capitol Hill, some at the White House. Kagan, just as Sonia Sotomayor last year, will take her Constitutional Oath in private at the justices' conference room. That's the room where the court votes on current and pending cases. Moments later, she will then take her Judicial Oath in public before the cameras in the court's West Conference Room.

Chief Justice John Roberts will swear in Kagan. He took his oaths at the White House, with Justice John Paul Stevens doing the honors. Kagan will now replace the retired Stevens. Current Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg were also sworn in with nationally televised White House ceremonies. Justices Anthony Kennedy and Samuel Alito, like Kagan, took their oaths at the court. Justice Stephen Breyer, interestingly, first took his oaths in rural Vermont in early August, where Chief Justice William Rehnquist, who did the honors, had a vacation home. That was so Breyer could begin his judicial duties immediately while the court was still in recess. The oaths were retaken for posterity in a public ceremony at the White House nine days later.

One special tradition involves the historic chair used by Chief Justice John Marshall, who served from 1801 to 1835. Every justice since Lewis Powell and Rehnquist in 1972 has sat in that chair before taking their oaths. In a rare twist, both men took office that same day, but by tradition, Powell gained all-important seniority because he was older than then-Associate Justice Rehnquist by 17 years.

Q: Does the president have to attend any of the official or ceremonial swear-ins?

CNN: No, but it has become a recent tradition. For the first 150 years, there was almost no presidential involvement. The first swear-in ceremony at the White House was in 1940, when President Franklin Roosevelt invited Justice Frank Murphy. Every president since has attended an oath ceremony for at least one of his appointees. And every current member of the court except Sotomayor has had an oath ceremony at the White House. Several of these were symbolic, since the justices may have already been sworn in officially earlier, so they could begin their work right away.

Q: There sure are a lot of ceremonies surrounding the court. Is that it for Kagan?

CNN: Not for an institution built on tradition and ceremony. While most new justices will have already begun their judicial duties, a separate investiture is often held, where colleagues formally welcome her to the bench. This is pure ritual, and is not required. The "special sitting" as they call it, is held in the courtroom, often several days or weeks after the official oaths are taken.
The new justice sits in the Marshall Chair just off the bench and the chief justice reads a proclamation. Kagan would then walk up to the bench, shake her colleagues' hands, and then take her seat on the far right end of the long dais. Presidents Clinton, Bush 43, and Obama have all attended at least one investiture ceremony at the court. President Truman was the first to attend an investiture of his nominee, for Justice Harold Burton in 1945. Kagan's investiture is set for October 1, three days before the court's new term begins.

One other informal ceremony familiar to many viewers is the traditional walk down the exterior, marble-columned Supreme Court steps by the chief justice and the new justice, both wearing their robes. That usually happens after an investiture or court oath ceremony. The newest court member smiles for the cameras, but rarely says anything beyond a simple "hello" or "thank you."

Q: Any other interesting tidbits?

CNN: –In 1981, Sandra Day O'Connor became the first woman on the high court. President Reagan, who made the historic appointment, attended the private oath ceremony at the court. It was also the first time such a private ceremony was photographed.

– Scalia in 1986 took his two oaths from two different chief justices. At the White House, the retiring Warren Burger first administered the
Constitutional Oath to Rehnquist - his replacement - then to Scalia. Later that day in a special sitting of the court, Burger delivered the separate Judicial Oath to Rehnquist, who then, in his first act as the new chief justice, did the same to the first Italian-American on the high court.

– The soon-to-be justice traditionally places his left hand on a Bible and raises his right hand during the oaths. The spouse of the nominee usually holds the Bible. Bachelor David Souter in 1990 relied on the teenage daughter of his good friend Thomas Rath to handle the job. Sotomayor's mother, Celina, did the same for her last August. Using the holy book is not necessary, according the court curator's office. A copy of the Constitution, another religious text, or no document at all can be used.

– The first justice to be fully vested as a member of the court was Justice James Wilson in 1789.

– It is customary for the justice, judge, or official who administers the oaths to sign the back of the accompanying paper commission, issued by the president and certifying the nominee was duly confirmed by the Senate. The commission in past years was often read out loud at the oath or investiture ceremonies.


Filed under: Elena Kagan • Popular Posts • Supreme Court
soundoff (6 Responses)
  1. USN

    Q- can you be arrested and jailed for breaking this oath ? If yes can we start with obama and run through the dem party then the repubs?

    August 7, 2010 09:53 am at 9:53 am |
  2. JIM CARROLL

    Why doesn't the News Media call on big corporations to hire
    people, rather than hoard money? They brag every day about all the money they have on the balance sheet. They have a responsibility
    to the working people of America to turn the buck loose and let it
    do its job. Read more internetfreepress.

    August 7, 2010 10:01 am at 10:01 am |
  3. James A. Melching

    Hope springs eternal that this new Justice will include the interests of not just the wealthly or myriad influential peddlers. To abide with unbiased judgement and enlist the words emblazoned on the outer Court House edifice: "Let us pray that Right makes Might-not, Might makes Right". What a clever change to welcome in this day of acrimony! If only the words are taken seriously,rather than just mouthing them, confirming our faith in our Government is long overdue and sorely needs resurection.
    James A. Melching/Springville, Ca.

    August 7, 2010 10:16 am at 10:16 am |
  4. the real ib

    sad this woman was confirmed by the senate. The two Va. senators that voted for her just lost my vote when they come up for re-election.

    August 7, 2010 10:23 am at 10:23 am |
  5. Republicans Are The American Taliban

    HEY BIRTHERS!! If President Obama is not legitimate because he was born in Kenya....then the written commission to Sotomayor and Kagan are invalid ....and thus all of their future decisions would be invalid....

    August 7, 2010 10:25 am at 10:25 am |
  6. Willy Brown

    Another project up grade appointment done by our affirmative action appointed pResident.

    August 7, 2010 10:41 am at 10:41 am |