(Slip Opinion)
Authority of the President to Prospectively
Appoint a Supreme Court Justice
If the Senate votes to confirm Judge Ketanji Brown Jackson as an Associate Justice of the
Supreme Court, the President may complete her appointment to the Supreme Court by
signing her commission before Justice Breyer’s resignation takes effect.
April 6, 2022
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked whether the President may prospectively appoint Judge
Ketanji Brown Jackson as an Associate Justice of the Supreme Court upon
the Senate’s providing the President notification of the confirmation, even
though the actual vacancy in the office of Associate Justice is not ex-
pected to occur until the Court rises for the summer recess this year. On
January 27, 2022, Justice Stephen Breyer notified the President that he
had “decided to retire from regular active judicial service” and that he
“intend[ed] this decision to take effect when the Court rises for the sum-
mer recess this year . . . assuming that by then my successor has been
nominated and confirmed.” See Letter for Joseph R. Biden Jr., President,
from Stephen Breyer, Associate Justice of the Supreme Court (Jan. 27,
2022) (“Breyer Resignation Letter”). The President subsequently nomi-
nated Judge Jackson to fill Justice Breyer’s seat on the Court, and the
Senate is expected to vote soon on whether to provide its advice and
consent to the nomination. See PN 1783, Nomination of Ketanji Brown
Jackson—Supreme Court of the United States, 117th Cong. (2022),
https://www.congress.gov/nomination/117th-congress/1783.
Our Office has taken the position that prospective appointments are
permissible for vacancies anticipated to occur during the appointing
official’s own term of office. See Memorandum for Harlington Wood, Jr.,
Associate Deputy Attorney General, from William H. Rehnquist, Assis-
tant Attorney General, Office of Legal Counsel, Re: Delay in Induction of
Judge into Office Following His Confirmation by the Senate (Nov. 27,
1970) (“Rehnquist Memorandum”). Consistent with this view, we con-
clude that, if the Senate votes to confirm Judge Jackson, the President
may complete her appointment to the Supreme Court by signing her
commission before Justice Breyer’s resignation takes effect. Judge Jack-
son will not, however, assume the office of Associate Justice until Justice
1
46 Op. O.L.C. __ (Apr. 6, 2022)
Breyer’s resignation is effective. See Power of the President to Nominate
and of the Senate to Confirm Mr. Justice Fortas to Be Chief Justice of the
United States and Judge Thornberry to Be Associate Justice of the Su-
preme Court,
3 Op. O.L.C. 154, 155 & n.2 (1968) (attached to Resigna-
tion of the Head of a Department Effective Only upon the Confirmation
and Appointment of a Successor,
3 Op. O.L.C. 152 (1979)) (“Power of the
President to Nominate”). Once his resignation is effective, she would then
take the oaths as prescribed by the Constitution and statute. U.S. Const.
art. VI, cl. 3;
28 U.S.C. § 453 (expressly providing that a person appoint-
ed to judicial office must take the oath prescribed by that statute “before
performing the duties of his office”).
I.
Article II of the Constitution provides that the President
shall nominate, and by and with the Advice and Consent of the Sen-
ate, shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the United
States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law[.]
U.S. Const. art. II, § 2, cl. 2. It further provides that the President “shall
Commission all the Officers of the United States.” Id. § 3, cl. 1.
Consistent with this text, three steps are required for completion of the
appointment of a Senate-confirmed officer: first, presidential nomination;
second, Senate advice and consent; and third, presidential appointment.
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155–57 (1803); Ap-
pointments to Office—Case of Lieutenant Coxe, 4 Op. Att’y Gen. 217, 219
(1843). Each of these steps is a “distinct operation[],” Marbury, 5 U.S. at
155, and each is completely “discretionary” within the hands of the rele-
vant actor, Appointment of a Senate-Confirmed Nominee,
23 Op. O.L.C.
232, 232 (1999). The President alone nominates, the “Senate has the sole
responsibility of consenting to the President’s choice,” Pub. Citizen v.
U.S. Dep’t of Justice,
491 U.S. 440, 487 (Kennedy, J., concurring in the
judgment, joined by Rehnquist, C.J., & O’Connor, J.), and the President
thereafter must take a “final public act . . . to complete the appointment,”
Appointment of a Senate-Confirmed Nominee, 23 Op. O.L.C. at 232. The
process is not complete until “the last act . . . has been performed,” a step
2
Authority of the President to Prospectively Appoint a Supreme Court Justice
that may be evidenced by a signed commission. Marbury, 5 U.S. at 157;
see Nat’l Treasury Emps. Union v. Reagan,
663 F.2d 239, 242 (D.C. Cir.
1981) (noting that, at that time, that had been “the rule” for “more than
one hundred and seventy-five years”).
Federal judges and justices may retire either completely or from regular
active service. See
28 U.S.C. § 371. It is typical for a federal judge, as
Justice Breyer did here, to announce the intention to retire by sending a
letter to the President indicating that they will step down on a specific
date or on the occurrence of a specific contingency.
Although in this situation a vacancy does not arise until the effective
date of the Justice’s retirement, we have long recognized that the Presi-
dent may nominate in anticipation of such a vacancy. See Nominations for
Prospective Vacancies on the Supreme Court,
10 Op. O.L.C. 108, 108–09
(1986) (“Prospective Vacancies”); Power of the President to Nominate,
3 Op. O.L.C. at 157–58. Indeed, prospective nominations have become
common with respect to anticipated vacancies on the Supreme Court.
Since 1986, twelve individuals have been nominated prospectively to the
Supreme Court, including Judge Jackson. 1
1 See Supreme Court of the United States, Justices 1789 to Present, https://www.
supremecourt.gov/about/members_text.aspx (providing the date each justice’s service
terminated); PN 1184, Nomination of William H. Rehnquist—The Judiciary, 99th Cong.
(1986), https://www.congress.gov/nomination/99th-congress/1184; PN 1193, Nomination
of Antonin Scalia—The Judiciary, 99th Cong. (1986), https://www.congress.gov/
nomination/99th-congress/1193; PN 456, Nomination of Clarence Thomas—Supreme
Court of the United States, 102d Cong. (1991), https://www.congress.gov/nomination/
102nd-congress/456; PN 422, Nomination of Ruth Bader Ginsburg—Supreme Court of
the United States, 103d Cong. (1993), https://www.congress.gov/nomination/103rd-
congress/422; PN 1399, Nomination of Stephen G. Breyer—Supreme Court of the United
States, 103d Cong. (1994), https://www.congress.gov/nomination/103rd-congress/1399;
PN 786, Nomination of John G. Roberts Jr.—The Supreme Court of the United States,
109th Cong. (2005), https://www.congress.gov/nomination/109th-congress/786; PN 978,
Nomination of Harriet Ellan Miers—Supreme Court of the United States, 109th Cong.
(2005), https://www.congress.gov/nomination/109th-congress/978; PN 1059, Nomination
of Samuel A. Alito Jr.—Supreme Court of the United States, 109th Cong. (2006),
https://www.congress.gov/nomination/109th-congress/1059; PN 506, Nomination of
Sonia Sotomayor—The Supreme Court of the United States, 111th Cong. (2009), https://
www.congress.gov/nomination/111th-congress/506; PN 1768, Nomination of Elena
Kagan—The Supreme Court of the United States, 111th Cong. (2010), https://www.
congress.gov/nomination/111th-congress/1768; PN 2259, Nomination of Brett M. Ka-
vanaugh—Supreme Court of the United States, 115th Cong. (2018), https://www.
3
46 Op. O.L.C. __ (Apr. 6, 2022)
We have also recognized that, after the Senate provides its advice and
consent, “[t]he President is authorized to make prospective appointments
to any office the term of which begins before January 20 [of the year his
term ends].” See Memorandum for John D. Calhoun, Assistant Deputy
Attorney General, from Robert Kramer, Assistant Attorney General,
Office of Legal Counsel, Re: Prospective Appointments by the President
(Apr. 7, 1960). As a “general rule,” “a prospective appointment to fill a
vacancy sure to occur in a public office, made by an officer who[]. . . is
empowered to fill the vacancy when it arises, is, in the absence of a law
forbidding it, a valid appointment, and vests title to the office in the
appointee.” Id. at 1 n.1 (quoting 67 C.J.S. Officers § 30). The President
could not “forestall the rights and prerogatives of [his] own successors by
appointing successors to offices expiring after [his] power to appoint has
itself expired,” Floyd R. Mechem, Treatise on the Law of Public Offices
and Officers § 133, at 67 (1890), but there is otherwise no general limita-
tion on the President’s authority to make appointments in advance of an
impending vacancy. 2
The Office has previously noted that historical practice supports the
President’s authority to make prospective appointments of judicial offic-
ers, including an Associate Justice of the Supreme Court. 3 In Power of the
President to Nominate, this Office provided several examples of judges
who were appointed by the President prior to the effective date of the
outgoing official’s resignation, including: Judge J. Skelly Wright, who
was appointed on March 30, 1962, to succeed Judge E. Barrett Prettyman,
who did not retire until April 15, 1962, 3 Op. O.L.C. at 156; Justice
congress.gov/nomination/115th-congress/2259; PN 1783, Nomination of Ketanji Brown
Jackson—Supreme Court of the United States, 117th Cong. (2022), https://www.congress.
gov/nomination/117th-congress/1783.
2 Consistent with these long-established principles, many state courts have recognized
that appointments for prospective vacancies generally are permissible if the appointing
authority could make them when the vacancy occurs. See Murphy v. Pearson,
667 S.E.2d
83, 85 (Ga. 2008); Gonzalez v. Bd. of Educ. of Elizabeth Sch. Dist.,
738 A.2d 974, 976–78
(N.J. Super. Ct. App. Div. 1999); State ex rel. Norman v. Viebranz,
483 N.E.2d 1176,
1178 (Ohio 1985); Mullinax v. Garrison,
373 S.E.2d 471, 472–73 (S.C. 1988); Turner v.
Shumlin,
163 A.3d 1173, 1186–88 (Vt. 2017) (per curiam).
3 These instances are discussed in the Rehnquist Memorandum and Power of the Pres-
ident to Nominate. In the time available, we have not been able to verify the accuracy of
all the dates represented in those writings.
4
Authority of the President to Prospectively Appoint a Supreme Court Justice
George Sutherland, who was appointed on September 5, 1922, to succeed
Justice John Clarke, who did not retire until September 18, 1922,
id. at
159; and Edwin M. Stanton, who was appointed on December 20, 1869, to
succeed Justice Robert Cooper Grier, who had announced his resignation
effective February 1, 1870,
id. at 158. 4 See also
id. at 166 (app. II) (addi-
tional examples). Our writings also indicate that, on at least one occasion,
a judicial officer has been appointed many months before taking the oath
and entering on the duties of the office. In the Rehnquist Memorandum,
the Office noted that Congressman Oren Harris was confirmed by the
Senate to a judicial office on August 11, 1965, and commissioned on
August 12, 1965, but that he did not take office until February 3, 1966,
nearly six months after the date of his appointment. Rehnquist Memoran-
dum at 1.
Here, Justice Breyer notified the President that he would retire upon the
Court’s adjournment for summer recess in June or July of this year, as-
suming that his successor had been confirmed. See Breyer Resignation
Letter. The anticipated date of the vacancy—approximately three months
from now—is plainly within the President’s current term of office and
consistent with the past exercises of prospective appointment authority
cited above. The President, thus having appointment authority at the time
the vacancy is expected to arise, may perform in advance the “last act” in
the three-step appointment process set out in Marbury and appoint Judge
Jackson as an Associate Justice, signified by his signing of her commis-
sion.
II.
The President’s signing of Judge Jackson’s commission would com-
plete her appointment, bringing to an end the President’s and the Senate’s
role in the process. See Marbury, 5 U.S. at 162; United States v. Le Bar-
on, 60 U.S. (19 How.) 73, 78 (1856). As the final act of appointment, the
execution of the commission would render the Senate’s consent final.
Rehnquist Memorandum at 3–4; see also United States v. Smith,
286 U.S.
6, 43–44, 48–49 (1932).
4 Edwin Stanton died on December 24, 1869, and never assumed office as an Associate
Justice.
5
46 Op. O.L.C. __ (Apr. 6, 2022)
The completion of the appointment, however, does not mean that Judge
Jackson assumes the office of Associate Justice. Rather, her entry on the
duties of the office remains contingent on Justice Breyer’s resignation
becoming effective. Justice Breyer, as a judicial officer with life tenure,
cannot be displaced from his office by the President’s appointment of a
successor. (This is in contrast to executive officers who serve at the
pleasure of the President and may be removed from office by the Presi-
dent’s act of appointing someone else in their place. See The Constitu-
tional Separation of Powers Between the President and Congress,
20 Op.
O.L.C. 124, 154 (1996).) Although Justice Breyer has submitted his
resignation to the President, he “remains in office until the condition[s]
[of his resignation] occur.” Power of the President to Nominate, 3 Op.
O.L.C. at 157. Once Justice Breyer’s resignation becomes effective, Judge
Jackson would then take the oaths as prescribed by the Constitution and
statute. U.S. Const. art. VI, cl. 3;
28 U.S.C. § 453.
III.
We therefore conclude that the President, through the signing of a
commission, may prospectively appoint Judge Jackson as an Associate
Justice in advance of the vacancy expected to arise upon Justice Breyer’s
retirement.
CHRISTOPHER H. SCHROEDER
Assistant Attorney General
Office of Legal Counsel
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