Abstract

Double Duty across the Magisterial Branches SAIKRISHNA BANGALORE PRAKASH Supreme Court Justices have full-time day jobs. Justices have duties as federal judges on the apex court and many reason­ ably regard these responsibilities as requiring their complete and undivided attention. But Justices can do so much more, and they can be so much more. The Constitution does not bar them from serving their country in other ways. From our nation’s inception, several Justices also have occupied other high offices and taken on other vital responsibil­ ities. This article considers early examples of double duty and the constitutionality of these off-the-bench pastimes. The article makes two assertions. First, although the Constitution established three branches, each vested with a particular sort of power and thereby created what we call the separation of powers, it never demanded an absolute separation of personnel. To be sure, members of Congress cannot simulta­ neously serve in either of the other two branches because the Constitution specifi­ cally so proclaims.1 Yet there is nothing in the Constitution that prevents someone from being both a judge and an executive.2 Second, the founding generation did not read the Constitution as barring this parti­ cular practice. In fact, early Justices (and judges) simultaneously served their nation in other capacities. If that understanding and practice is still valid, as I believe it is, nothing today prevents Justice Samuel Alito from simultaneously negotiating with Kim Jong Un. Similarly, nothing bars modern executives from wearing two hats, hearing court cases in the morning and performing executive functions in the afternoon. Secre­ tary of State Mike Pompeo could be a judge on the Court of Appeals for the D.C. Circuit in his spare time. Doubly Dutiful Chief Justices Before diving into the legal questions about cross-branch service, some comments about John Jay and John Marshall are appropriate, as these are our earliest multi­ taskers, Justices who ably spanned two branches. Our story begins with John Jay. DOUBLE DUTY 27 Jay was a scion of a patrician New York family. He attended King’s College, now Columbia.3 He took up lawyering in 1768. A little less than a decade later, he became involved in the disputes with Great Britain, eventually favoring a complete break from that nation.4 In 1774 and 1775, he served as a New York delegate to the first and second Continental Congresses.5 In 1777, at the ripe age of thirty-two, he helped draft the first New York Constitution and was selected as the first chief justice of the New York Supreme Court.6 In 1778, New York re­ turned him to the Continental Congress, where his fellow delegates elected him to serve as their presiding officer, the president of the Continental Congress.7 This office was quite unlike our presidency, for its duties primarily consisted of chairing Con­ gress’s deliberations and proceedings. Jay simultaneously served as Congress’s presi­ dent and as New York Chief Justice until 1779, when he resigned the latter position.8 After a little less than a year as president, Congress sent Jay to convince Spain to recognize America’s independence and to procure a loan. He secured the latter, but not the former.9 From there, Congress dispatched him to Paris in 1782 to negotiate a peace treaty with the British.10 Although Benjamin Franklin and John Adams also served as treaty commissioners, Jay was the principal American interlocutor. The envoys secured the 1783 Treaty of Paris, with the British belatedly recognizing America’s independence.11 Of course, the diplomats received a strong assist from George Washington and the 1781 Battle of Yorktown. Jay returned to the United States in 1784 and discovered that the Continental Congress in 1784 had appointed him as its second Secretary of Foreign Affairs.12 Under the Articles of Confederation, there was no separate, independent executive. Rather, the Continental Congress exercised a few legis­ lative authorities and the executive power over foreign affairs, wielding war powers and directing diplomacy. While serving as Congress’s Secretary of Foreign Affairs through 1789, Jay wrestled with difficult matters related to piracy in the Mediterra­ nean, Spanish control of the Mississippi, and the...

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