X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
During his mournful contemplation in front of William Rehnquist’s coffin at the Supreme Court on Sept. 6, John Roberts Jr. looked up and soberly scanned the majestic Great Hall in which he was standing. It seemed to be sinking in for Roberts that he could soon be running the Court and the federal judiciary as chief justice, rather than starting as the most junior associate justice, whose main special duty would have been to open the door when someone interrupts the Court’s private conferences with a knock. In swiftly switching Roberts from the Sandra Day O’Connor seat to the chief justice opening created by Rehnquist’s death, President George W. Bush may have left the impression that the jobs of associate justice and chief justice are fairly interchangeable. The hoary axiom that the chief justice has only one vote, just like the rest, also feeds that view. But in reality, the job Roberts signed up for has sweeping, if usually unstated, powers and significance.Inside the Court — which will be known henceforth as “the Roberts Court” if he is confirmed — he will have powers not only to assign opinion-writing but to disproportionately influence policy over issues ranging from the size of the docket to whether to allow broadcast coverage of Court proceedings. Beyond the Court walls, Roberts will be the titular head of the entire judicial branch, with policy-setting roles and a budget in excess of $5 billion. He will chair the Judicial Conference, which sets policy for the federal judiciary, and will appoint judges to key committees of the conference. During his confirmation hearings, Roberts may face a whole line of questioning about administrative issues that he would not have been subjected to as a choice for associate justice. “It’s more than just being chief justice. He sits at the head of a Fortune 500 corporation, a very large and complex organization,” says Harvey Rishikof, a professor at the National War College who served as one of Rehnquist’s administrative assistants in the 1990s. Roberts, himself a clerk for Rehnquist while he was an associate justice, is keenly aware of the differences between the associate and chief positions. “It’s a big change when you go from associate to chief justice,” Roberts said in a 1997 talk at Georgetown University that was recently replayed on C-SPAN. As an associate justice, Roberts said, Rehnquist developed “a carefully considered view of the Constitution.” As chief, he said, Rehnquist “now has to spend some time policing” his colleagues and the Court. “Institutionally, it’s a very different role.” As those comments suggest, if Roberts is confirmed, he won’t have that same chance as his predecessor to develop his conservative jurisprudence off to the side. Instead, he will be thrust into the center-chair role of assigning opinions in cases in which he is in the majority — a job that some scholars say tends to push a chief justice toward the ideological middle. University of Pennsylvania law professor Theodore Ruger, a former Stephen Breyer clerk who has studied Rehnquist’s rulings before and after he became chief justice, says, “He moderated when he became chief justice. He dissented much less.” Ruger cites two decisions Rehnquist wrote that he might not have joined as an associate: Dickerson v. United States in 2000, which upheld defendants’ Miranda rights, and Nevada Department of Human Resources v. Hibbs, a 2003 decision applying the Family and Medical Leave Act to the states. As chief, Rehnquist may have assigned the opinions to himself in part so that he could limit their scope through the writing, but still, the outcomes supported liberal positions. A BIG-LEAGUE ADMINISTRATOR Ruger, who has also written on the powers of the chief justice, says the position has accumulated “vast discretionary authority” during the past century, including the power to appoint judges to specialized courts such as the Judicial Panel on Multidistrict Litigation. The chief justice also appoints the director of the Administrative Office of the U.S. Courts, a position held for the past 20 years by Leonidas Ralph Mecham. As one example of the chief justice’s broad, even overlapping powers, Ruger notes that the Judicial Conference, which Rehnquist headed, opposed the passage of the Violence Against Women Act in the 1990s because it could create too many civil rights lawsuits for the federal courts to handle. When Congress passed the law anyway, a Rehnquist-led Supreme Court majority struck it down. Ruger and Judith Resnik, a professor at Yale Law School, have questioned whether so much power should be lodged in one unelected, life-tenured person. One indicator of the power of a chief justice is how much things can change at the Court when a new chief takes office. Florida International University law professor Thomas Baker saw that transition up close when the late Warren Burger retired in 1986 to head the commission celebrating the bicentennial of the Constitution. Baker was ending a year as a Supreme Court fellow when Rehnquist, about to be chief, called and asked him to become his first administrative assistant. Burger’s powerful, longtime administrative assistant Mark Cannon had already decamped for the bicentennial commission. Baker agreed to take the position temporarily in September 1986, and within a month, officials of the Court “started bringing me proposals for pet projects that hadn’t gotten a hearing before. They wanted me to sign off on them, but I postponed most of them.” Baker said that by the time he left in January, Rehnquist had placed his own stamp on the Court. “He emerged as an administrator to be reckoned with, a big-league administrator who embraced that role.” For example, Rehnquist continued Burger’s annual report on the state of the judiciary, a significant platform for the chief to advocate legislation — including increases in judicial pay — and take stands on issues like judicial independence. But instead of Burger’s flashy presentation in a speech at annual American Bar Association meetings, Rehnquist turned it into a written report issued without fanfare at the end of each year. Rehnquist also quickly redefined the powerful position of administrative assistant to the chief justice. To prevent empire-building, Rehnquist hired his assistants for two-year stints, though he renewed several over the years. He similarly limited the terms of committee assignments in the Judicial Conference. INTERNAL ISSUES Baker says that Rehnquist also moved to trim the Court’s docket. “In Burger’s heyday they were deciding 150 cases a year — so many that they were talking about creating an intermediate appellate court to handle some of the load. Rehnquist comes in, and with the platform of being chief justice, all that disappears, to the point where the Court is being criticized for taking too few cases.” Other factors, including statutory changes, also helped reduce the docket. In his 1997 talk at Georgetown, Roberts spoke on the docket issue, opining that “160 cases was probably too many to do a good job. The quality was not what it should be.” He added, “They can probably do a few more than 85, but not as many as 160.” But Roberts would probably be wise not to move too quickly on that or other issues, especially since he, unlike Rehnquist, would be a newcomer to the Court. And at 50, he would be the youngest chief justice since John Marshall was appointed in 1801 at age 45. “His first priority is to gain the respect and confidence and trust of his colleagues,” says Baker. Rehnquist was extremely popular among his colleagues on the Court, in large part because he was viewed as fair in making opinion assignments and spreading the Court’s work around evenly. John Paul Stevens and O’Connor are the only justices who have served with a chief justice other than Rehnquist. In her eulogy for Rehnquist at his funeral Sept. 7, O’Connor praised his leadership. “He never twisted arms to get votes on a case.” Invoking her Western roots, O’Connor said that Rehnquist led the Court “with loose reins . . . and he used his spurs only rarely.” Roberts was in the audience at St. Matthew’s Cathedral as she spoke. Roberts, familiar with the Court’s traditions and members from his years as both a law clerk and an advocate, is likely to carry the reins just as lightly, at least at first. In the same 1997 speech, Roberts was mildly critical of the “cert pool,” the arrangement by which eight of the nine current justices pool their clerks for the screening of incoming petitions. Each case is reviewed by a single clerk whose memo on the case goes to the eight justices in the pool. Roberts said it was “a little disquieting” that clerks could exert such unchecked influence. If Roberts decided not to join the pool as an associate justice, it might have generated only a passing interest. But if he made the same move as the new chief justice, it could take on much more significance and mark the beginning of the end of the arrangement. In his speech, Roberts suggested the possibility of creating two pools, so that each case is looked at by at least two clerks. But in this area, too, Roberts should move cautiously, says Rishikof. “He would have to navigate that with his colleagues.” Another Court practice that could be influenced significantly by Roberts is the longstanding prohibition against cameras, a policy mirrored in most lower federal courts, as well. In informal comments, some current justices have suggested they are lukewarm on the subject, but they say they have deferred to the chief justice’s wishes. Rehnquist did not share Burger’s active disdain for the idea but was also not interested in pushing it, so the policy has not budged in a decade. Roberts is sure to be asked his views on the subject at his confirmation hearings. One of the first decisions facing Roberts — already generating debate in the blogosphere — is whether he will continue his predecessor’s whimsical innovation in judicial garb: a robe with four gold stripes on each sleeve. Rehnquist added the stripes a decade ago after seeing a performance of Gilbert and Sullivan’s “Iolanthe.” The betting is against it, especially since O’Connor explained at Rehnquist’s funeral why he had chosen four stripes instead of another number. “One stripe for every five years” on the Court, she said. Newcomer Roberts could justify a stripeless robe on the grounds that he has no half-decades under his belt. But he might also choose to continue the practice to honor his mentor Rehnquist. “He could use the stripes out of respect for Chief Justice Rehnquist,” says Florida International’s Baker. “He could also not use the stripes out of respect for Rehnquist.”Rishikof, who was working for Rehnquist when he added the stripes, was asked for his view. “Let me put it this way,” he says diplomatically, “I prefer basic black.”
Tony Mauro can be contacted at [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.