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Wednesday, August 04, 2021

When Did People Start Calling Them Justices Instead of Judges?

In my work on Bushrod Washington, one thing I've noticed is that almost everyone referred to him as "Judge Washington" when they were describing his formal title. George Washington used this term. So did John Marshall. My initial thought on this was that Supreme Court Justices in this era were riding circuit most of the time and thus were "judges" in the sense that they held trials and were not sitting as Justices.

To my surprise, though, further research shows that people regularly referred to the Justices as "judges" well into the twentieth century. You see this in many newspaper articles and in law review articles. For example, in 1926 Charles Warren (the author of well known books on the history of the Supreme Court) wrote an article in the Harvard Law Review in which he talked about "Judge Harlan," "Judge Field," and "Judge Brandeis" in describing Supreme Court decisions. This was well after the end of circuit riding. What led to the convention that we always say "Justice so-and-so" is unclear. 

Posted by Gerard Magliocca on August 4, 2021 at 09:24 PM | Permalink

Comments

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Posted by: thegreatdisappointment | Aug 5, 2021 9:03:19 AM

Interesting issue.

The point is, that in some US states, "judges" as we perceive it, are called justices (like in NY state). So, It doesn't really help to deal with those circuit judges at the time.

But I have encountered a research on that issue, titled:

"The History, Meaning, and Use of the Words Justice and Judge"

And here I quote the abstract:

" The words justice and judge have similar meanings because they have a common ancestry. They are derived from the same Latin term, jus, which is defined in dictionaries as “right” and “law.” However, those definitions of jus are so broad that they obscure the details of what the term meant when it formed the words that eventually became justice and judge. The etymology of jus reveals the kind of right and law it signified was related to the concepts of restriction and obligation. Vestiges of this sense of jus survived in the meaning of justice and judge.

Although justice and judge have similar meanings rooted in a shared ancestry, they are not quite the same. There are two reasons for this. First, they are constructed from the addition of different Latin suffixes to jus, and those suffixes had different meanings. Second, justice and judge entered the English language at different times; people began to use the word justice when England’s legal system was different from how it was when they started to use judge. Centuries ago, these two facts combined to make justice refer to one who embodies the law and judge to mean one who speaks the law.

There are more similarities than differences between the words justice and judge, but the differences are important. For example, justices may insist they are not judges, and judges sometimes correct people who call them justices. These distinctions can be difficult to keep straight. Trial and intermediate appellate court judges in most states and in the federal judicial system are called judges, while those on the highest courts are justices. But that is not the case in New York, where some trial judges are known as justices, or in Texas, where intermediate appellate judges are called justices, and some of the highest court judges are judges.

The similarities and differences between justices and judges are not just matters of title or courtesy, they are also important matters of law. A justice of a final court of appeal might make new law through a judicial decision, while another justice might consider this an unconstitutional usurpation of legislative power."

Here:

https://commons.stmarytx.edu/thestmaryslawjournal/vol49/iss4/1/

Thanks

Posted by: El roam | Aug 5, 2021 6:16:30 AM

This topic also brings to mind Blackmun's sick burn on Rehnquist in Casey that only saw the light of day after Blackmun's papers were released.

https://en.wikipedia.org/wiki/Harry_Blackmun#Relationship_with_other_justices

For a little comparative international perspective, there are essentially two Japanese words that can be used more or less interchangeably to refer to the members of a court. But neither word really makes any distinction between a "Justice" and a "judge". Interestingly enough, the English-language webpages for the JP court system do say "Justice" for the Supreme Court and "judge" for the lower courts. So that acknowledges the distinction made in English. But again, I don't think such a concept really exists in the native language.

Posted by: kotodama | Aug 5, 2021 1:04:36 AM

Boatright, “The History, Meaning and Use of the Words Justice and Judge,” 49 St. Mary’s L.J. 727 (2018), says that American usage has gradually been converging on using “justice” for a member of a jurisdiction’s highest tribunal (following the British) and “judge” for the inferior levels. But the development in that direction has been slow and not without significant exceptions (such as New York and Texas). If that history is accurate, the standardization of terminology with respect to the Supreme Court is consistent with the broad general American trend.

Posted by: RQA | Aug 4, 2021 11:45:54 PM

Well, COTUS isn't all that vocal on the subject and when it weighs in, it does so sort of conflictingly. Art. III says "judges" as in "judges, both of the supreme and inferior courts". But when you use it in the aggregate like that to refer generically to both lower courts and SCOTUS, I don't think it counts for much. In contrast, Art. I mentions the CJ presiding over impeachment. There, I do see that as a reference to a title held by a specific person, in this case the Chief Justice. And by extension, the other members of the Court are Justices. So I would be inclined to give the nod to using "Justice" based on Art. I. But again, it's a bit of a slender reed.

Posted by: kotodama | Aug 4, 2021 10:56:57 PM

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