Caps, Cloaks, Bibles: The Supreme Court and the Inauguration

The top members of the three branches of government will gather in a rare display of national unity and tradition when the presidential and vice presidential oaths are taken at Monday’s inauguration. The sworn novice, and perhaps funny hats, will be an indispensable part of the ceremony.

Chief Justice John Roberts and Justice Brett Kavanaugh will continue the nearly 240-year-old tradition of swearing-in President-elect Trump and his #2, JD Vance. The remaining seven members of the high court are expected to attend the event in the Capitol Rotunda, all in their judicial robes.

Whatever political differences there may be, they will certainly not be noticeable at this most cordial and dignified ceremony. After all, the first person the president will thank will probably be the chief justice. But an undercurrent of tension remains.

During his first race for high office in 2016, candidate Trump took the unusual step of attacking a member of the federal judiciary, calling Roberts an “absolute disaster” among other personal insults. This will be the “boss’s” fifth presidential inauguration, his second with Trump.

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The choice of Kavanaugh is no surprise: The new second lady Usha Vance worked for Kavanaugh when he was a judge on the US Court of Appeals in Washington.

She then went on to the prestigious Supreme Court bar with Roberts. Sources say Kavanaugh made a particularly strong recommendation for the Usha Vance job to his current colleague on the bench.

In an August interview with “Fox and Friends,” Usha Vance said Kavanaugh was “such a good boss” and a “decent person” who “hired people from across the political spectrum.”

“My experience working for him was extremely positive,” she added.

Sandra Day O’Connor, Ruth Bader Ginsburg and Clarence Thomas are among recent justices who have taken similar vice presidential oaths.

While the chief justices are usually sworn in by the president, a wider mix of officials perform vice-presidential duties. Then-Speaker of the House Dennis Hastert administered the oath of office to Vice President Dick Cheney in 2005.

Thomas did the honors when he Mike Pence he was sworn in in 2017 as vice president for Trump’s first term.

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Justice has been served

Article VI. The Constitution requires executive officials, including the president, as well as members of Congress and federal judges, to “be bound by oath or affirmation,” but nothing mandates that a Supreme Court justice enforce it. When it comes to presidential inaugurations, they just have, most of the time.

The Supreme Court had not yet been formed when George Washington took his first oath in 1789, so New York’s highest-ranking judge paid his respects at Federal Hall on Wall Street. Four years later, Associate Justice William Cushing was sworn in for a second term in Washington, beginning a Supreme Court tradition.

Early oaths were usually administered in the hall or Senate chamber. The 1817 inauguration was held outdoors for the first time when James Monroe was sworn in outside the Old Brick Capitol, where the legislature temporarily met after the original Capitol was burned by invading British troops in the War of 1812. Monroe’s oath of office now occupies Supreme Courtwhich opened its building in 1935.

The man who held those offices more than 200 years ago was John Marshall, widely recognized as the most influential chief justice in US history. He participated in a record nine swearing-ins, from Thomas Jefferson to Andrew Jackson. This will be Roberts’ fifth.

The Constitution spells out the exact language to be used in the 34-word oath: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will do it to the best of my ability, to preserve, protect, and defend the Constitution of the United States.”

Many judges have used the four little words, “by God.” It is not legally or constitutionally required, unlike other federal oaths that refer to the words as standard procedure. Historians have debated whether President Washington set a precedent by adding the phrase himself during his first acceptance, but contemporary reports make no mention of such advertising.

Abraham Lincoln is said to have said this spontaneously in 1861, and other presidents have followed suit over the years. Traditionally, a Bible is used, with the president placing one hand on it while raising the other during the oath.

The 16th president and Chief Justice Roger Taney shared a mutual enmity. When the oath was taken just days before the outbreak of the Civil War, many who attended the ceremony noted the cool demeanor the two men displayed towards each other, befitting the late winter cold. Several historians have said that Lincoln secretly issued an arrest warrant later that year for Taney, who tried to prevent the president’s suspension of habeas corpus during the conflict. The order was never served.

President Barack Obama used the Lincoln Bible for his two oaths.

Trump is expected to use the Lincoln Bible and the family Bible again.

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Correctly

Roberts, taking his first presidential oath in 2009, deviated slightly from the text, prompting his re-swearing for protective reasons the next day, in a private ceremony at the White House.

Those ceremonies on January 20 at the Capitol also took a long time, so that the presidential swearing-in did not end until five minutes past noon. Regardless, Obama officially took office as president at noon under the 20th Amendment.

At the time, a California atheist, Michael Newdow, objected and went to federal court to prevent Roberts from having Obama repeat the phrase “so help me God.” Newdow, along with several non-religious groups, argued that the words violated the constitutional ban on government “endorsement” of religion.

The High Court ultimately rejected the lawsuit, and no such legal challenges are expected this time.

Four years later, Justice Sonia Sotomayor swore Biden in for a second term as vice president in 2013. Vice President Harris asked her to do the honor again, and the first female vice president cited the fact that both women were once attorneys general.

Pence used family Bible of the late President Ronald Reagan, telling Fox News at the time, “It’s very humbling for me. We approach it prayerfully, but with deep, deep gratitude to the president-elect for his trust and deep gratitude to the American people.”

Trump also broke tradition by not attending the swearing-in of his successor four years ago.

Lyndon Johnson’s 1965 inauguration marked a change in tradition. His wife Claudia – known as Lady Bird – held the Bible, a job previously held by a clerk of the high court. Spouses have held that honor ever since, and Melania Trump and Usha Vance are expected to continue that role.

Let’s hope the nerves don’t result in a repeat of the folly of 1941, when then-clerk Elmore Cropley dropped a Bible just after Franklin Roosevelt was sworn in to begin his third term as president.

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What to wear, what to say

At the inauguration, it is usually not difficult to spot the judges, who are normally protected from public view in the court without cameras. They are announced as a group, arrive in their black robes – which usually cover bulky winter coats – and are given prominent places on a specially constructed platform on the west front of the Capitol.

Before Marshall took over the court in 1801, judges wore red fur-trimmed robes and white wigs in all public places. His practice of wearing a simple black silk robe without a wig remains the American judicial standard.

And if there’s any doubt about their identity, look for some unusual headgear, and some judges might be sporting one. The large black “caps” have no brim and can be made of wool, silk or even nylon. Perhaps to avoid looking like Jewish yarmulkes, the hats are usually folded up, which is why one federal judge privately told Fox News that he looks like he’s wearing a dirty napkin.

With the inauguration ceremony being indoors this year due to the expected cold weather, hats may be an afterthought.

They have been present at British courts since the 16th century, and for at least a century United States. They are only worn by judges, and only in official ceremonies, not in court.

Official records are hazy on the hats, but Chief Justice Edward White proudly wore one in 1913 when Woodrow Wilson became president. The “Age of the Cap” reached its peak in 1961 when seven of the nine justices wore it to the bitterly cold inauguration of President John F. Kennedy.

Last time, only now-retired Justice Stephen Breyer was brave enough to wear it, although Thomas, Anthony Kennedy and the late Antonin Scalia had previously worn them. None of the six current or former female judges has ever used them.

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Scalia told an audience a few years ago why he prefers caps on his head. “If you’ve ever seen an inauguration, you’ll see me wearing old hats like the judges used to wear. The hat looks funny, but it’s a tradition. Yeah, it looks funny.”

Scalia’s headdress was a replica of the one worn by St. Thomas More, a gift from the Society of St. Thomas More of Richmond, Virginia

The late Chief Justice William Rehnquist also wore them, not surprisingly, given his role as the unofficial historian of judicial procedure and tradition.

He gave one of the most dramatic performances in inauguration history while suffering from thyroid cancer in 2005. There was speculation that he would be too ill to attend, but he assured officials that he would be there, and kept his word.

After three months of absence from the public while receiving chemotherapy, the ailing 81-year-old chief was introduced to the public shortly before President George W. Bush either take an oath. Using a cane, Rehnquist walked slowly to the podium without assistance – wearing a dark baseball cap – and paid his respects. His voice was clear, but hoarse, because of the windpipe in his throat, which was hidden by his scarf.

Afterward, Rehnquist wished Bush luck, then was quickly ushered out of the cold.

Rehnquist had also sworn in President Bill Clinton eight years earlier. Unbeknownst to Clinton or the public, the justices had voted privately in Clinton v. Jones a few days earlier. Their ruling states that the president cannot refuse to testify in a civil lawsuit brought against him by Paula Jones, who allegedly sexually harassed him. This set in motion a series of events that led to Clinton’s impeachment in 1999 in the US Senate, presided over by Rehnquist himself, hatless.