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10 Things That Must Happen When a Supreme Court Justice Dies

Some very specific traditions honor a justice’s life, while constitutional rules keep the country running

Justice Antonin Scalia
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A relatively rare occurrence

When Americans mourned the loss of Sandra Day O’Connor, the first female Supreme Court justice, who died on Dec. 1, 2023, you may have wondered how the country would acknowledge her passing. Because O’Connor retired in 2006, there aren’t as many rules and traditions that must be followed as when a sitting Supreme Court Justice passes. However, those protocols did go into effect when Ruth Bader Ginsburg died in office in September 2020, Antonin Scalia died in 2016 and William H. Rehnquist died in 2005. With just a handful of years separating the deaths of these justices, you might think that vacancies on the Supreme Court caused by death are common, when the opposite is actually true.

Prior to Rehnquist’s death, the last SCOTUS justice to die in office was Robert Jackson, in 1954. In fact, since 1900, only nine justices have died in office. Perhaps because it’s relatively rare, traditions surrounding the death of a sitting Supreme Court justice aren’t as robust as when a president dies. You can count on the following things happening, however.

Supreme Court Justice Ruth Bader Ginsburg Dies at 87
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The flag is flown at half-staff

According to the U.S. Flag Code, the flag is flown at half-staff for ten days following the death of a chief justice of the Supreme Court. For associate Supreme Court justices, it should be flown at half-staff from the day of death until interment at all federal buildings, grounds, and naval vessels throughout the United States and its territories and possessions.

Ruth Bader Ginsburg's Supreme Court Seat Draped In Black Cloth
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The justice’s chair is draped in black crepe

Immediately following the death of a Supreme Court justice—who are allowed to serve for life—his or her chair at the court is draped in black wool crepe, as is the bench immediately in front of the chair. A black drape is also hung over the courtroom doors. The draping remains in place for 30 days. The tradition began in 1873, after the death of Chief Justice Salmon P. Chase.

Justice Ruth Bader Ginsburg Lies In State At US Capitol Building
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The family makes funeral arrangements

Though Justice Ginsburg‘s body lay in repose outside the Supreme Court for two days and then lay in state at the Capitol for another day, such honors are rare for a SCOTUS justice. The only other justice to lie in state was William Howard Taft, who served as president before serving on the court as the chief justice. If the body is to lay in repose, family members determine who carries the casket and how long the body will remain in repose. The family also makes all funeral and burial arrangements. While Ginsburg and a dozen other justices have been buried at Arlington National Cemetery, many others have chosen smaller or more private grounds.

Justice Ruth Bader Ginsburg Lies In Repose At Supreme Court
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Law clerks are reassigned

Each Supreme Court justice is permitted to have four law clerks in each term, except for the chief justice, who is allowed five. Law clerks conduct research, draft memos, and perform proofreading, fact-checking, and other administrative services to assist a justice. After a SCOTUS justice dies, his or her law clerks are typically assigned to other justices for the remainder of the court term.

Justice concept.
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The office is vacated

The justice’s chambers typically comprise three or four rooms, including a working office, a room for files, a room for the law clerks to work, and an outer reception area. After a justice’s death, the family and staff—usually one or two secretaries, plus a messenger—begin to clear out the office, removing documents and mementos. No law regulates what happens to a justice’s official papers, so they may be donated to a library or law school, or the family can keep them in a private collection.

Often, a grace period is granted so that staff can remain on the payroll of the court while this work is completed. Once a respectful period of time has passed, the court may offer the office to other justices on the basis of seniority. If no one accepts, then the office is held for the justice’s replacement.

Interior Of Supreme Court
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Seating is rearranged

Once the black draping is removed, the remaining eight justices switch their seating. The most senior member (currently Chief Justice John Roberts) is seated in the center, and then he is flanked by the two most senior associate judges. The next most senior justices sit next to them, and so on, with the most junior justices sitting in the most distal chairs.

Donald Trump Announces His Supreme Court Justice Nominee
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Amy Coney Barrett (R), U.S. President Donald Trump’s nominee for associate justice of the U.S. Supreme Court, speaks alongside President Trump.

The president nominates a replacement

When a justice on the Supreme Court dies, the sitting president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” someone to fill that vacancy, according to Article II, Section 2 of the U.S. Constitution. The president is given unrestricted leeway in his or her selection and is not required to explain it. The Constitution does not specify that nominees meet any requirements pertaining to education, citizenship status, or age. James F. Byrnes, who served from 1941 to 1942, did not graduate from high school, though he taught himself law successfully enough to pass the bar exam at the age of 23. Once the president has decided on a nominee, he sends the information to the Senate.

SENATE JUDICIARY COMMITTEE
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The Senate Judiciary Committee holds hearings

Typically, since 1955, the Senate Judiciary Committee has held hearings for nominees for Supreme Court justice as well as for Cabinet positions before referring candidates to the full Senate for confirmation. The usual first step is for the committee chair to launch a pre-hearing investigation, examining details about the nominee’s background. The process typically takes 30 to 45 days. Once any questions there have been satisfied, the 20-member committee holds public hearings. Often, the candidate is questioned about legal matters and political positions. Next, the committee sends a report to the full Senate, giving the candidate a favorable or unfavorable recommendation, or no recommendation at all.

The only nominee not to appear before the committee since 1955 was Merrick Garland, who was nominated by President Obama to fill the vacancy left after the death of Justice Antonin Scalia. At that time, Committee Chairman Chuck Grassley (R-Iowa) refused to hold hearings, and no vote was held in the Senate.

U.S.-WASHINGTON D.C.-SENATE-TRUMP-ACQUITTAL
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U.S. Senate Majority Leader Mitch McConnell

The Senate holds an up/down vote

Once the Senate Judiciary Committee sends its report to the full Senate, a date is scheduled for voting by all members. (That happens even if the committee makes a negative recommendation.) A simple majority, or a total of 51 votes from the 100 senators, is required to confirm the nominee. In the case of a tie, the vice president casts a vote. If the nominee is confirmed, the secretary of the Senate notifies the president, and the nominee can be sworn in as a Supreme Court justice, even within hours of the confirmation.

President Donald J. Trump
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The court settles unfinished business

Even as the nomination process is underway, the SCOTUS will continue to hear cases, despite having eight justices instead of its usual nine. Any cases that were in progress at the time of the justice’s death must forgo his or her vote, even if it’s known how that justice would have voted. If any cases result in a deadlocked 4–4 vote, the court can pursue one of three options: It can try to rule on different grounds to secure a majority; it can let the most recent lower-court decision stand; or it can reschedule the case for the next term, when a ninth justice is seated.

Sources:

  • U.S. Department of Veteran Affairs: “Flying the American Flag at Half Staff”
  • NPR: “In Photos: A Short History of Official Funerals for Supreme Court Justices”
  • The New York Times: “Ruth Bader Ginsburg Lay in State on Friday. It’s a Rare Distinction.”
  • SCOTUS Blog: “SCOTUS for law students: Questions about the Court after Justice Scalia’s death”
  • The Washington Post: “What happens when a Supreme Court justice passes away?”

Laurie Budgar
Laurie has more than 20 years of experience as a writer and editor, specializing in finance, personal technology, travel, sustainability and health. In addition to Reader's Digest, her work has appeared in Fortune Small Business, the Denver Post, AAA Colorado, American Way, Healthline, Parenting, Delicious Living, The Healthy and many more. She's also a little obsessed with genealogy, so you may find her wandering through cemeteries in her spare time.