Choosing the Chief

Unlike the Supreme Court of the United States, Illinois is one of 23 states in which its supreme court chooses who will be the chief justice.¹ At the federal level, the president appoints the chief justice, but in Illinois, the justices select one of their own members. How that process is done is up to the court itself. The current unwritten custom in Illinois is that the longest-serving justice who has not yet been chief, will become the next chief. This practice dates to 1873 (with a few exceptions). But it wasn’t always this way.

During the first Illinois constitutional period (1818–1848), justices were not popularly elected nor did the justices choose their chief. The constitution mandated a court comprised of four justices, subject to change. The framers gave the legislative branch extraordinary powers, including appointments to the supreme court and to the chief justice position. At the first meeting of the General Assembly, the legislature chose Joseph Philips as the court’s first chief.²  According to the constitution, justices were to “hold their offices during good behavior,”³ meaning there were no term limits. Philips remained chief until he resigned from the court to run for governor in 1822. The legislature then appointed Thomas Reynolds, who was chief for three years until the legislature replaced him in 1825 with William Wilson. Wilson was chief for 23 years—the longest tenure of chief justice in Illinois history.

Illinois’s first constitution had a number of problems but the legislature appointing nearly every position in state, county, and local government was a major one. The second constitution, which took effect in 1848, was influenced by Jacksonian Democracy, calling for citizens by popular vote to control who served in various positions. The intent was based on the idea that the people, in democratic elections, have a greater control over the administration of government and that those popularly elected would be more responsive to the public.
The 1848 constitution provided for the supreme court to be an elective body with nine-year terms and contested elections. Three justices would be popularly elected from three equally sized geographic districts of northern, central, and southern Illinois. The constitution also stipulated how chief justices were to be selected. In the first election, the three justices would be elected for a three-year, six-year, and nine-year term in order to stagger the tenures, then nine-year terms thereafter. The first justice with the nine-year term would become the chief, and the constitution added that the “judge having the longest term to serve shall be the first chief justice; after which, the judge having the oldest commission shall be chief justice.”⁴ The three newly elected justices drew straws to determine who would have the respective terms, and Samuel H. Treat drew the nine-year term, making him the first chief justice under the 1848 constitution.⁵

When Treat resigned in 1855 to become a federal judge, the court followed the precedent of the “longest term to serve.” Walter B. Scates became chief because he had just been elected in 1853. When he resigned from the Court in 1857, John D. Caton became chief because he had just been re-elected in 1854. This pattern of making the justice with the longest term to serve remained in effect until the new constitution of 1870.

The 1870 constitution provided that the court be made up of seven justices from seven geographic districts and that the “Chief Justice shall continue to act as such until the expiration of the term for which he was elected, after which the Judges shall choose one of their number Chief Justice.”⁶ Charles Lawrence had become chief in 1870 and remained until his term ended in 1873.

When Lawrence’s three-year term had completed, the court met at the June term 1873 in Mt. Vernon. It “made a rule under the new constitution electing one of their numbers as chief justice, to serve one year. Under this rule, Judge [Sidney] Breese was chosen for the first year; next it will be [Pinkney] Walker, and so on, through the entire bench, seniority taking precedence.”⁷ This became part of Supreme Court Rule 56: “On the first Monday in June of each year the Justice of this court being highest in rank shall be the Chief-Justice, and shall hold such office the term of one year.” If two or more justices were elected on the same day, they would “determine seniority by lot.”⁸

Because chief terms were only one year, nearly everyone who served on the Supreme Court during the 100 years of the 1870 constitution became chief justice at some point. In several situations, if a justice had a particularly long tenure on the court, he could serve as chief multiple times. For example, James Cartwright and Clyde Stone served as chief five times over their nearly 30 years on the Supreme Court. The years 1940 and 1961 each saw three chiefs as one term ended, the new chief died in office, and then another chief succeeded him.⁹
When the Supreme Court consolidated its locations to meet only in Springfield in 1897, eliminating terms in Mt. Vernon and Ottawa, the court passed new rules. Rule 56 became rule 38 but required a justice to be on the court for at least two years before becoming chief and added that if “all eligible Justices shall have therefore served as Chief Justice, then the Justice whose last term as Chief Justice is the most remote shall succeed.”¹⁰ By 1933, Supreme Court Rule 38 became rule 56 again.¹¹

In 1964, Illinois adopted an entirely new judicial article to the 1870 constitution. It maintained the number of justices at seven but distributed them throughout the state differently: three from Cook County and one each from four other judicial districts roughly equal in population. The new article stipulated that the “judges of the Supreme Court shall select one of their number to serve as Chief Justice for a term of three years.”¹² In addition to adopting a new judicial article, the supreme court adopted new rules. It converted Rule 56 into Rule 31 but eliminated the method for choosing the chief. Rule 31 remains in effect today and only relates to seniority on the court.¹³

Ray Klingbiel was the last chief under the old judicial article, holding the position from September 9, 1963 to December 31, 1963, but the court reappointed him as chief to become the first chief under the new article, taking office on January 1, 1964 to serve a three-year term.¹⁴ When Chief Justice Klingbiel’s three-year term ended in 1966, the justices chose Roy Solfisburg as the new Chief, which was a departure from prior practice. In the rotational system, Robert Underwood should have been the next chief. When Solfisburg resigned from the court in 1969, Underwood became the chief. During Underwood’s tenure, Illinois voted on yet a new constitution, which adopted the 1964 article nearly in its entirety.¹⁵

The first selection of chief under the new constitution was mildly contentious, according to a newspaper report. Chief Justice Underwood was not interested in another term as chief, acquiescing because he was a Republican while the Democrats held a 4-3 edge in the make-up of the court. Both Thomas Kluczynski and Charles Davis each received votes from their fellow justices but lacked a majority. Another ballot gave all votes to Underwood as a compromise candidate, and he served another three years as chief.¹⁶ Since then, the court has adopted the unwritten rule (but written prior to 1964) of the longest tenured justice who has not yet been chief, will be the next chief. 

The justices consistently held three-year terms beginning January 1, until James Heiple resigned as chief in April 1997 because of several scandals. Charles Freeman succeeded Heiple but did not complete a full three years. He resigned as chief on December 31, 1999, and Moses Harrison became chief on January 1, 2000. When Moses Harrison retired in September 2002 before the end of his chief term, Mary Ann McMorrow was elevated to chief. McMorrow and her immediate successor Robert Thomas each served a full three-year term. Thomas Fitzgerald did not serve a full three years as chief due to health issues, and Thomas Kilbride became chief on October 26, 2010. Since that time, the end of October has been the approximate start date for the new chief justices: Rita Garman, Lloyd Karmeier, Anne Burke, and now Mary Jane Theis.

While methods to choose the Illinois chief justice have changed over the course of 200-plus years, the important role of the chief has not changed—to oversee all of the courts in Illinois and to set the agenda for the supreme court as a leader among equals.