When the Chief Justice Serves in the Legislative Branch
|By Roy E. Brownell II||—||3 Akron J. Const. L. & Pol'y 31|
This article argues that the Chief Justice is considered part of the legislative branch during presidential impeachment trials. In so arguing, this article first argues, as a matter of constitutional text, that the Chief Justice during presidential impeachment trials steps into the shoes of the president of the Senate. The Chief Justice’s authority in this vein is granted by Article I, which predominantly governs the legislative branch, and not Article III, which does the same for the federal judiciary.
Indeed, the only reference to the Chief Justice in the entirety of the Constitution occurs in this context in Article I. In his role as presiding officer, the Chief Justice has power only under this article to fall back on. The Chief Justice carries with him no residual Article III authority; he exercises no power of judicial review.
Second, the Chief Justice is part of the legislative branch during presidential impeachment powers because impeachment is not listed among the aspects of judicial branch power under Article III. Quite simply, as a matter of text, the judicial branch—as opposed to the Chief Justice in a legislative branch capacity—is in no way part of the impeachment process.
A third textual provision reaffirms this view. Article I grants the Senate “the sole Power to try all impeachments,” which poses a major obstacle to the view that the Chief Justice is always in the judicial branch. How could the Chief Justice—as presiding officer of the Senate during presidential impeachment trials—not be considered part of the Senate given the upper chamber’s exclusive authority to try all impeachments? To view him otherwise is to contradict the constitutional mandate that the Senate alone carries out this duty.
Fourth, a broader structural feature is also at play that further reinforces the view that the Chief Justice is part of the legislative branch duing presidential impeachment trials. It has long been established that the judicial branch may not have its final determinations appealed to the other branches. The Supreme Court held that “invalidation of final [judicial] judgments [is] . . .
categorically unconstitutional.” Yet, as presiding officer of the Senate, any rulings by the Chief Justice may be (and indeed have been) overridden by the Senate.
Fifth, these textual and structural factors are enhanced by custom and practical considerations. For example, the Chief Justice like the Vice President in more commonplace settings can vote to break ties during presidential impeachment trials. In the Johnson impeachment proceedings, Chief Justice Chase twice voted to resolve a Senate impasse. The initial vote was challenged but ultimately upheld by the chamber.
Moreover, the Chief Justice like the Vice President and President Pro Tempore can make a variety of parliamentary rulings subject to possible Senate override. In this context, the Chief Justice may even be referred to by senators as “Mr. President,” again clearly denoting his legislative branch role and his status as a fill-in for the president of the Senate. As such, the Chief Justice is not resolving cases and controversies under Article III; he is participating in the internal business of the Senate under Article I.