Office of The Chief Justice

Although Article III of the Constitution established “one Supreme Court,” actual creation of the office awaited passage of the Judiciary Act of 1789. The nature, functions, and powers of the chief justiceship remained undefined. The office was thereafter shaped not only by custom and statutory accretion but also by each of the sixteen chief justices' personality and perception of his role.

Chief justices are “first among equals.” Formal distinctions include differences in salary and staff and, beginning in 1995, a sartorial distinction—four gold stripes adorning each of the sleeves of William H. Rehnquist's robe. Incumbents perform the traditional judicial function as titular leaders. They preside over the Court's public and closed proceedings and, infrequently, over presidential impeachment trials. Court‐related managerial and public relations duties devolve on them as have extensive responsibilities for administering the entire federal judiciary. Finally, the office offers opportunities for statesmanship in the broadest sense.

Presiding Officer

The chief justice's most conspicuous customary duty is that of presiding over Supreme Court proceedings. In an earlier era, the chief justice also presided over the circuit courts allotted to him. Vestiges of the once onerous circuit riding duty remain, as attested by Rehnquist's allotment to the Fourth Circuit, traditionally assigned to the Chief Justice, as well as to the District of Columbia Circuit and to the Federal Circuit. Article I mentions that the chief justice is to preside over the Senate when the president is tried for impeachment, as did Salmon P. Chase and Rehnquist. Opening and closing Court sessions, making announcements, admitting lawyers, and enforcing sartorial standards and etiquette on attorneys are duties within the chief justice's province. Foremost among them is that of controlling the flow of proceedings.

Behind closed doors, the chief justice chairs Court conferences on case selection and on argued cases. Although his vote counts merely as one of nine, his titular position affords a special opportunity for leadership. Success depends on a combination of effective task and social leadership skills. Professional and managerial expertise characterize the former while the latter is marked by a capacity for promoting intracourt harmony. Charles Evans Hughes possessed both talents, as did John Marshall and Earl Warren. Harlan Fiske Stone, however, fell short on both. William Howard Taft, the prototypical social leader, was emulated by Warren Burger who, like Frederick Vinson, proved deficient in conference leadership. Rehnquist's style, modeled on that of John Marshall, combines vision, craft, tenacity, and social skills to promote efficient working of the Court as well as warm collegial relations.

The chief justice plays a pivotal role in shaping the Court's agenda when he presides over the screening of cases for plenary review with circulation of a “Discuss List” of cases that he deems potentially “cert worthy,” as well as a “Dead List.” He opens discussion of previously argued cases framing issues, presenting the salient facts and law, and stating his conclusions. Discussion proceeds in order of descending seniority followed, in the Hughes era, by voting in reverse order of seniority, a system conducive to strategic voting on the chief justice's part. A single‐step process subsequently emerged wherein each justice speaks and votes in descending order of seniority.

If in the majority, the chief justice enjoys the critical power of assigning authorship of the Court's opinion. A product of Marshall's adoption of Lord Mansfield's style, the unified opinion enhances institutional visibility and the power of the assignor. Assignment criteria have included administrative, professional, and strategic/political considerations. Thus, Rehnquist has distributed the workload evenly among the brethren. Like Taft and Hughes, but unlike Burger, he has exercised the prerogative of his office and assigned authorship to himself in important constitutional cases. In their capacity as jurist–presiding officer, great chief justices have materially enhanced the prestige and authority of the office they occupied.

Court Manager and Guardian

Chief justices perform a variety of Court management duties. Routine interactions with associate justices and staff are interspersed with others of far‐reaching importance. Melville Fuller, Taft, Hughes, and Burger all dealt gracefully with easing off the bench a disabled colleague. Internal administration involves the chief justice with the Court's bureaucracy and its heads: clerk, marshal, reporter of decisions, librarian, and nonstatutory officers. Budget estimates are traditionally the chief justice's responsibility as is their presentation to congressional appropriations committees by his designatees. Chief justices differ in their degrees of interest in management of the Supreme Court building. Both Taft and Burger saw their office as mandating vigorous action on the subject; Rehnquist does not. Burger directly intervened in personnel matters and in regulations affecting the library and the law clerks (see Clerks of the Justices). The chief justice's expanding administrative functions caused enlargement of his personal staff, most significantly by the addition of an administrative assistant to the chief justice in 1972 who became the Court's long‐tenured chief executive officer and publicist. Under Rehnquist, who has less interest in micromanagement than did his predecessor, the assistant, appointed for two to three years, enjoys a lower profile.

Chief justices act as public advocates and defenders of the Court and occasionally of its decisions, as did Rehnquist in denying that politics shaped Bush v. Gore (2000). They press the institution's interests before coordinate branches of the national government and the public. Chase and Fuller led successful legislative campaigns for ameliorating the Court's burgeoning post–Civil War docket by relieving justices of their circuit duties. Taft boldly promoted the Judiciary Act of 1925, which gave the Court considerable control over its docket. Burger followed suit without success in pressing for establishment of a new tier in the judicial hierarchy—a National Court of Appeals. Rehnquist was instrumental in the passage of the 1988 act that further reduced the Court's mandatory appeal jurisdiction (see Judicial Improvements and Access to Justice Act).

Nurturing the status of colleagues and the Court falls to the chief justice, who is expected to defend the members in matters of protocol and salary parity. On the chief justice also devolves the duty of visibly protecting judicial independence. Marshall in Marbury v. Madison (1803) utilized the judicial function to achieve this end. Hughes employed extrajudicial commentary in spearheading public refutation of the 1937 “court‐packing” plan. Warren adopted a publicist strategy in attacking a quiet court‐curbing constitutional amendment campaign. In his book The Supreme Court (2001), intended for a lay audience, and in his often published public addresses, Rehnquist celebrates the two hundred year development of the institution's prestige and authority even in the face of popular democratic impulses that seemingly threaten judicial independence.

Third Branch Chieftain

Taft's chief justiceship marked a watershed in the dimensions of the office. Commissions issued to John Jay through Morrison Waite denoted each as “chief justice of the Supreme Court of the United States.” But Fuller, commissioned in 1888, became the first “chief justice of the United States,” a title given significance by Taft. Taft's efforts spawned creation in 1922 of the Judicial Conference of the United States, composed of lower federal court judges and chaired by the chief justice. He regarded the conference as integrating federal judicial administration and thereby strengthening the courts' capabilities. Under Hughes the conference was augmented in 1939 by the Administrative Office of the United States Courts, bulwarking the judicial branch against executive threats to judicial independence. A research and continuing education capacity was added at Warren's behest in 1967 with the opening of the Federal Judicial Center. Its functions conformed well with his desire to facilitate judicial case flow without constricting access to the lower courts (see Administration of Federal Courts).

As conference chairman, the chief justice stands first among unequals and controls an institutional structure that potentially facilitates transmutation of judicial issues into administrative issues. He presides over the biannual meetings, manages the agenda, votes, and creates and dissolves committees. Committee creation and appointment to them of judges who covet the status and associations derived from such service enables chief justices to control the judiciary's policy making process as did Burger and his successor. Rehnquist in 1987 directed a reorganization of the committee structure to expand the role of the Executive Committee. Success is not assured. When a task force hand picked by him recommended restrictions on the availability of federal habeas corpus in state capital cases, conference opposition developed. Rehnquist nevertheless permitted Congress to receive the recommendations, thereby causing a “palace revolt” among the judges that derailed the original recommendations.

Other levers of power are available to the chief justice through the Administrative Office. Its director until 1990 was formally selected by the Court but the justices deferred to the candidate favored by the chief justice, who chairs the conference that supervises and directs the agency. Statutory revision empowered chief justices beginning with Rehnquist to appoint and remove at will the director and deputy director in consultation with the Judicial Conference. The director predictably reflects the chief justice's administrative vision, as has L. Ralph Mecham (director since 1985) in decentralizing and delegating decision‐making responsibilities formerly vested in the office to the individual courts. As chairman of the Federal Judicial Center's Governing Board, he may influence the appointment of the center's director, inspire reports, and reach out to newly commissioned judges attending the center's educational programs.

The chief justice has statutory responsibilities for personnel management in the lower courts. The 1922 act empowered the chief justice to assign consenting judges to and from any circuit. Subsequent legislation permitted assignments to specific panels and to special courts. Exercise of this administrative power has excited controversy on grounds of its capacity for influencing substantive results, as when Taft transferred “dry” judges to “wet” districts during Prohibition and Burger made conservative appointments to the Foreign Intelligence Surveillance Court. Rehnquist selected the members of the three‐judge panel of the Independent Counsel Division of the U.S. Court of Appeals for the District of Columbia Circuit which, in turn, appointed Kenneth W. Starr to investigate Hillary Clinton (in the Whitewater affair) as well as President William J. Clinton (in the Monica Lewinsky scandal).

The act of 1922 fundamentally altered the relationship between courts and Congress. Thereafter, the chief justice transmitted to Congress the judiciary's conference‐approved legislative program. Transmittal, however, is merely a first step. Taft and Hughes personally testified before congressional committees in promoting conference measures. Subsequent development of the conference committee system reduced the necessity for the chief justice's presence, but did not end it. Taft and Vinson extensively lobbied individual legislators, as did Burger in opposing the 1978 bankruptcy act. Important evolution of the congressional liaison function has occurred during the Rehnquist era. The conference in 1995 adopted its first long range plan that set out the judiciary's core values and mission with policy and implementation goals. Thus emerged a “programmatic judiciary” collectively advocating through the conference and by means of judicial lobbying approved policies that echo the congruent constitutional jurisprudence of the Rehnquist Court protective of federalism and skeptical of expanded national jurisdiction, most notably with respect to the 1994 Violence Against Women Act (United States v. Morrison [2000]).

As the visible symbol of the federal judiciary, the chief justice as publicist seeks to mobilize public support for the judiciary's legislative programs. A variety of organizational affiliations provide him with ample opportunities. Warren and Burger labored fruitlessly for a “State of the Judiciary” address to a joint session of Congress. But beginning in 1970 the American Bar Association's annual meetings have afforded a surrogate forum. There and elsewhere, Burger publicly advocated reforming the administration of justice in the states, reforms compatible with his view on the proper relations between federal courts and state institutions. Modernization of state judicial systems facilitated by creation of the National Center for State Courts would improve their capacities for fairly adjudicating the rights of citizens and reducing the need for intrusive federal court supervision. Rehnquist has successfully orchestrated the Court's adjudicative function, the conference's political role, and his newsworthy annual, “Year End Report on the Federal Judiciary” for multiple ends. They include enhancing the identity and assertedly superior culture of federal courts, cabining congressional efforts, expanding federal jurisdiction, and defending his judicial constituency by campaigning for increased judges' pay, for filling of vacant judgeships, and by criticizing coordinate branches' collection of criminal sentencing data, as well as by questioning the constitutionality of the 2000 Judicial Education Reform Act.

Statesman

Supreme Court members from the earliest days served as all‐purpose public servants. To this role the chief justice essentially transfers the credibility of his office, its authority, prestige, and association with the highest symbols of law—reason, probity, and commitment to justice. The high status of the office has encouraged Congress to impose extrajudicial duties. Incumbents from Jay to Marshall served on the Sinking Fund Commission authorized in 1790. The commission model endured when Congress established in 1846 the Smithsonian Institution and its Board of Regents headed by Roger Taney, the first of the chief justices to hold the position of chancellor. Except for international arbitration duties, volition nurtured by presidential invitations accounts for most extrajudicial activities undertaken by chief justices. Constitutionally barred only from membership in Congress, Jay and Marshall served simultaneously, albeit briefly, as chief justice and secretary of state. Important special missions in foreign diplomacy attracted Jay and Oliver Ellsworth. Others from Jay through Burger have acted as presidential advisers. Some advised on matters fraught with partisan politics and even broke ethical constraints as did Vinson in his counseling of President Harry Truman on the constitutionality of seizing investor‐owned steel mills, an issue which he subsequently adjudicated in Youngstown Sheet & Tube Co. v. Sawyer (1952). Modern presidents have called upon chief justices to head presidential commissions. Warren reluctantly chaired the controversial investigation of the assassination of President John Kennedy. Few have perceived the office as a stepping stone to the presidency. Salmon Chase stands alone as one who harbored serious presidential aspirations.

The passage of two centuries has vastly altered the office of chief justice. Once largely judicial in nature punctuated by important statesmanship duties, the office has become characterized by substantial administrative functions that clearly differentiate its incumbent from those of the associate justices as well as from all other federal judges. It is an office endowed with multiple levers of power wherein judicial issues can be transformed into administrative questions. Depending on the role perceptions and skills of the incumbent, the contemporary office affords resources for attaining important public policy goals.

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See also Extrajudicial Activities; Opinions, Assignment and Writing of

Bibliography

• Peter G. Fish, The Office of Chief Justice (1984).
• David M. O'Brien, Storm Center: The Supreme Court in American Politics, 2d ed. (1990).
• Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harvard Law Review, 925–1037 (February 2000).
• Robert J. Steamer, Chief Justice: Leadership and the Supreme Court (1986)

— Peter G. Fish