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Chief Justice, Role of the

CHIEF JUSTICE, ROLE OF THE

The title "Chief Justice" appears only once in the Constitution. That mention occurs not in Article III, the judicial article, but in connection with the Chief Justice's role as presiding officer of the senate during an impeachment trial of the President. With such a meager delineation of powers and duties in the Constitution, the importance of the office was hardly obvious during the early days of the Republic. Despite President george washington's great expectations for the post, his first appointee, john jay, left disillusioned and convinced that neither the Supreme Court nor the chief justiceship would amount to anything. Yet, a little over a century later, President william howard taft stated that he would prefer the office to his own. During that intervening century, an office of considerable power and prestige had emerged from the constitutional vacuum. Since then, the Chief Justice's role has continued to evolve. Today, the office is the product of both the personalities and the priorities of its incumbents and of the institutional forces which have become stronger as the Supreme Court's role in our government has expanded and matured.

Like the other Justices of the Supreme Court, the Chief Justice of the United States is appointed by the President with the advice and consent of the Senate. He enjoys, along with all other full members of the federal judiciary, life tenure "during his good behavior." With respect to the judicial work of the Court, he has traditionally been referred to as primus inter pares—first among equals. He has the same vote as each Associate Justice of the Court. His judicial duties differ only in that he presides over the sessions of the Court and over the Court's private conference at which the cases are discussed and eventually decided. When in the majority, he assigns the writing of the opinion of the court. Like an Associate Justice, the Chief Justice also performs the duties of a circuit Justice. A circuit Justice must pass upon various applications for temporary relief and bail from his circuit and participate, at least in a liaison or advisory capacity, in the judicial administration of that circuit. By tradition, the Chief Justice is circuit Justice for the Fourth and District of Columbia Circuits.

In addition to his judicial duties, the Chief Justice has, by statute, responsibility for the general administration of the Supreme Court. While the senior officers of the Court are appointed by the entire Court, they perform their daily duties under his general supervision. Other employees of the Court must be approved by the Chief Justice.

The Chief Justice also serves as presiding officer of the judicial conference of the united states. The Conference, composed of the chief judge and a district judge from each circuit, has the statutory responsibility for making comprehensive surveys of the business of the federal courts and for undertaking a continuous study of the rules of practice and procedure. The Chief Justice, as presiding officer, must appoint the various committees of the Conference which undertake the studies necessary for the achievement of those statutory objectives. He must also submit to the Congress an annual report of the proceedings of the Conference and a report as to its legislative recommendations. Other areas of court administration also occupy the Chief Justice's attention regularly. He has the authority to assign, temporarily, judges of the lower federal courts to courts other than their own and for service on the Panel on Multidistrict Litigation. He is also the permanent Chairman of the Board of the Federal Judicial Center which develops and recommends improvements in the area of judicial administration to the Judicial Conference.

From time to time, Congress has also assigned by statute other duties to the Chief Justice. Some are related to the judiciary; others are not. For instance, he must appoint some of the members of the Commission on Executive, Legislative, and Judicial Salaries; the Advisory Corrections Council; the Federal Records Council; and the National Study Commission on Records and Documents of Federal Officials. He also serves as Chancellor of the Smithsonian Institution and as a member of the Board of Trustees of both the National Gallery of Art and the Joseph H. Hirshhorn Museum and Sculpture Garden.

In addition to these formal duties, the Chief Justice is considered the titular head of the legal profession in the United States. He traditionally addresses the American Bar Association on the state of the judiciary and delivers the opening address at the annual meeting of the American Law Institute. He is regularly invited to other ceremonial and substantive meetings of the bar. Finally, as head of the judicial branch, he regularly participates in national observances and state ceremonies honoring foreign dignitaries.

The foregoing catalog of duties, while describing a burdensome role, does not fully indicate the impact of the Chief Justice on the Supreme Court's work. For instance, with respect to his judicial duties, the Chief Justice, while nominally only "first among equals," may exercise a significant influence on the Court's decision-making process and, consequently, on its final judicial work product. His most obvious opportunity to influence that process is while presiding at the Court's conference. He presents each case initially and is the first to give his views. Thus, he has the opportunity to take the initiative by directing the Court's inquiry to those aspects of the case he believes are crucial. Moreover, although the Justices discuss cases in descending order of seniority, they vote in the opposite order. Therefore, while speaking first, the "Chief," as he is referred to by his colleagues, votes last and commits himself, even preliminarily, only after all of the associates have explained their positions and cast their votes. If he votes with the majority, he may retain the opinion for himself or assign it to a colleague whose views are most compatible with his own. In cases where there is significant indecision among the Justices, it falls to the "Chief" to take the initiative with respect to the Court's further consideration of the case. He may, for instance, suggest that further discussion be deferred until argument of other related cases or he may request that several Justices set forth their views in writing in the hope that such a memorandum might form the basis of a later opinion.

There are also more indirect but highly significant ways by which the "Chief" can influence the decision-making process. As presiding officer during open session, he sets a "tone" which can make oral argument either a formal, stilted affair or a disciplined but relaxed, productive dialogue between the Court and counsel. Even the Chief Justice's "administrative" duties within the Court can have a subtle influence on the Court's decision-making processes. The efficient administration of the Court's support services as well as the employment of adequate staff personnel can nurture an ambiance conducive to harmonious decision making.

While occupancy of the Court's center chair no doubt gives the incumbent an enhanced capacity to influence jurisprudential developments, there are clear limitations on the exercise of that power. The Court is a collegial institution; disagreement on important issues is a natural phenomenon. In such a context, as Justice william h. rehnquist put it in a 1976 article: "The power to calm such naturally troubled waters is usually beyond the capacity of any mortal chief justice. He presides over a conference not of eight subordinates, whom he may direct or instruct, but of eight associates who, like him, have tenure during good behavior, and who are as independent as hogs on ice. He may at most persuade or cajole them." Political acumen is often as important as intellectual brilliance. Whatever the Chief's view of his power, he must remember that, in the eyes of the associates, "the Chief Justice is not entitled to a presumption that he knows more law than other members of the Court …,"as Justice Rehnquist said in chambers in Clements v. Logan (1981). Other institutional concerns further constrain the Chief's ability to guide the Court's decisions. All Chief Justices have recognized, although to varying degrees, a responsibility to see not only that the Court gets its business done but also that it does so in a manner which maintains the country's confidence. Sometimes, those objectives require that the Chief refrain from taking a strong ideological stance and act as a mediator in the formation of a majority. Similarly, while the assignment power can be a powerful tool, it must be exercised to ensure a majority opinion that advances, not retards, growth in the law. Even the prerogative of presiding over the conference has a price. The Chief Justice must spend significant additional time reviewing all the petitions filed with the Court. As the performance of Chief Justice charles evans hughes demonstrated, perceiving those areas of ambiguity and conflict that are most troublesome in the administration of justice is essential to leading effectively the discussion of the conference. For the same reason, the Chief must take the time to master the intricacies of the Court's procedure.

The extrajudicial responsibilities of the Chief Justice can also place him at a distinct disadvantage in influencing the Court's jurisprudential direction. The internal decision-making process of the Court is essentially competitive. There is nothing so humble as a draft opinion with four votes and nothing so arrogant as one with six. Such a process does not easily take into account that one participant must regularly divert his attention because of other official responsibilities. Moreover, there is a special intellectual and physical cost in shifting constantly between the abstract world of the appellate judge and the pragmatic one of the administrator. A Chief Justice who takes all his responsibilities seriously must experience the fatiguing tension that inevitably results from such bifurcation of responsibilities. Here, however, there may be compensating considerations. Whatever advantage the Chief may lose in the judicial bargaining because of administrative distractions may well be partially recovered by the prestige gained by his accomplishments beyond the Court. The Court has benefited from a strong Chief Justice's defense against specific political threats such as President franklin d. roosevelt's Court-packing plan. It has also benefited when the Chief's efforts have resulted in legislation making its own workload more manageable. Chief Justice Taft's support of the judiciary act of 1925, for instance, gave the Court more control over its own docket and, consequently, increased capacity to address, selectively, the most pressing issues. In modern times, the tremors of the litigation explosion that has engulfed the lower courts have been felt on the Supreme Court. The accomplishments of a Chief Justice in alleviating these problems cannot be overlooked by his associates.

Certainly, with respect to nonjudicial matters, a Chief Justice's special responsibility for institutional concerns has commanded respect from the associates. Even such greats as Justice louis d. brandeis regularly consulted the Chief on matters that might have an impact on the reputation of the Court as an institution. This same identification of the Chief Justice with the Supreme Court as an institution has made some Chief Justices the acknowledged spokesperson for both the Supreme Court and the lower federal courts before the other branches of government and, indeed, before the public.

With no specific constitutional mandate to fulfill, early Chief Justices, most especially john marshall, molded the office in which they served just as they molded the courts over which they presided. In those formative periods, the dominance of personal factors was understandable. Today, however, significant institutional forces also shape the office. In addition to the extrajudicial duties imposed by Congress, the Court, now a mature institution of American government, exerts through its traditions a powerful influence over every new incumbent of its bench—including the person in the center chair.

Kenneth F. Ripple
(1986)

Bibliography

Frankfurter, Felix 1953 Chief Justices I Have Known. Virginia Law Review 39:883–905.

Freund, Paul A. 1967 Charles Evans Hughes as Chief Justice. Harvard Law Review 81:4–43.

Rehnquist, William H. 1976 Chief Justices I Never Knew. Hastings Constitutional Law Quarterly 3:637–655.

Swindler, William F. 1971 The Chief Justice and Law Reform. The Supreme Court Review 1971:241–264.

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