The Chief Justice on Strike

In reading about the impeachment of President Johnson, I came across this nugget. Article One, Section Three of the Constitution says that “The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside.”

Suppose, though, that the Chief Justice just refuses to show up because he disapproves of the impeachment. Can the Senate trial go forward?  If so, how?  You could impeach and remove the Chief Justice, of course, but that might take a long time.  Suppose, on the other hand, that the Chief Justice is ill and cannot attend the President’s impeachment trial.  Can an Acting Chief Justice preside?

Just wondering . . .



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3 Responses

  1. nidefatt says:

    Nope. Unless the rest of the Supreme Court interprets the Constitution to say so.

  2. Daniel says:

    I’m sure you’re aware of this, but Chief Justice Chase was unhappy about some of the Senate’s pre-trial actions. has some photos of what was essentially Chase’s dissent from the Senate’s decision to draft rules of procedure and issue summonses before being organized as a court of impeachment under oath.

    I guess this is the closest we’ve come to your hypothetical being realized, but Chase decided it was “not my purpose to contest what [the Senate’s] superior wisdom may have directed.”

  3. Scott Moss says:

    Interesting! At the least, I could see a novel about an elderly Chief Justice refusing to preside over the impeachment of a President s/he supports, or (more interestingly) over a particularly specious impeachment (e.g., a wholly political impeachment) — and thereby delaying that impeachment possibly indefinitely, at the risk of the CJ’s impeachment, followed by the President’s nomination of an unconfirmable new CJ:

    1) President impeached
    2) An elderly CJ refuses to preside, sacrificing his/her job to create the possibly indefinite delay detailed below
    3) Other Justices refuse to deem themselves “Acting Chief Justice” capable of presiding
    4) Senate takes months to impeach Chief Justice
    5) President nominates new CJ politically unpalatable to Senate (e.g., Romney appointing John Yoo, Obama nominating Duncan Kennedy), assuring no confirmation of a new CJ able to preside….