Hail to the Chief - Articles

All Content

Posted by: Kristin Myles, Michelle Friedland & Aimee Feinberg on Aug 1, 2012

Journal Issue Date: Aug 2012

Journal Name: August 2012 - Vol. 48, No. 8

The Spotlight Has Been on Chief Justice John Roberts This Summer, But the Job Has a History of Making Waves

The chief justice of the United States occupies a unique position in our constitutional and legal structure. Like the eight associate justices, he casts only one vote in each case. But the chief — known as the “first among equals” — has numerous special roles both inside and outside the Supreme Court. These roles position the chief to influence the Court’s business — and that of the nation.

Retired Justice John Paul Stevens recently published a memoir called Five Chiefs, which reflects on the chief justices with whom he worked during his long career — first as a law clerk and then as an associate justice. Inspired by Justice Stevens’s account, we explore here the role of the chief justice and how it has evolved throughout our nation’s history.

Unlike the president, who serves four-year terms, a chief justice can hold the post indefinitely — a privilege that may allow the occupant to lead the judicial branch for an entire generation. Although the nation now has had 43 presidents, it has had only 17 chief justices. (Note that Barack Obama is the 44th president, but is the 43rd person to serve in the job, since Grover Cleveland served two nonconsecutive terms as president number 22 and 24.) Each of these 17 men (we have yet to have a female chief justice) has left an imprint on the Court, the office of chief justice, and the law.

The Duties of the Chief Justice Today

The role and duties of the chief justice are not specifically defined in the Constitution. The Constitution mentions the chief justice only once: in Article I, Section 3, which states that the chief “shall preside” over any impeachment trial of the president. But the office of the chief justice has evolved over the course of history, with many of the chief’s powers and duties arising from custom rather than law. One trend is certain: since the first chief justice, John Jay, took office in 1789, both the responsibilities and the status of the office of chief justice have increased dramatically.

Inside the Supreme Court

Within the walls of the Supreme Court building, the chief justice has only one of nine votes, but he exercises a distinct influence over the Court’s decision-making process. The chief justice runs the “cert pool,” which is the Court’s formalized system for reviewing the thousands of petitions for certiorari filed each year. Most of the justices are members of the “pool,” and each week their clerks are assigned to review a set of the petitions and prepare for each petition a “pool memo” summarizing the contentions and making a recommendation as to the “cert-worthiness” of the case. The chief oversees the distribution of cases to the chambers of each justice in the pool, and, once the pool memos are complete, the chief circulates a “discuss list” setting out the cases to be considered at the justices’ next conference. Any cert petition that does not earn a spot on the “discuss list” is automatically denied. Any associate justice may add a case to the “discuss list” after it is circulated, but the chief starts the ball rolling with the cases that he feels are important.

Once the Court grants certiorari in a case, the chief’s influence over that case increases. The chief administers the Court’s calendar and decides which cases will be heard on which days. During oral argument, the chief presides — with the enviable power to cut off an advocate whose time has run out, or, if he is so inclined, to allow that last answer while the red light is glowing. (Perhaps less enviable is the chief justice’s task of swearing in new members of the Supreme Court bar before argument begins. In that role, the chief must carefully listen to each oral motion to make sure that the movant has correctly recited the standard governing admissions to the Court’s bar.)

After argument, the chief presides over the justices’ weekly conference where the cases are discussed and decided. The chief always speaks first, and if he is in the majority after all nine votes are cast, he also has the prerogative to select which of his colleagues will write the Court’s opinion — or to write it himself. This prerogative is perhaps the chief’s greatest institutional power, because it has the potential significantly to shape the law of the land. As the chief knows, the opinion inevitably will reflect the approach and style of the authoring justice.

In a particularly important case, the chief may seek to achieve consensus around a single opinion so that the Court may be perceived as speaking with one voice. Indeed, many Court-watchers have come to measure a chief justice by his ability to produce unanimous decisions in controversial cases — or, at least, to avoid fractured opinions in any case.

Outside the Court’s Walls

Beyond his significant influence over the Supreme Court’s own docket, the chief justice can affect decision making in lower courts as well. After all, as denominated by Congress in 28 U.S.C. §1, the chief justice is not the “Chief Justice of the Supreme Court” — he is the “Chief Justice of the United States.” By virtue of an array of provisions elsewhere in the U.S. Code, the chief is vested with the power to choose — without a Senate confirmation hearing — which lower court judges will sit on important specialized courts. The chief justice selects the 11 district court judges who review the government’s applications for foreign intelligence surveillance orders and the five judges on the Alien Terrorist Removal Court. More significantly for civil litigators, the chief designates the seven circuit or district judges who sit on the Judicial Panel on Multidistrict Litigation.

The role of chief also brings with it important administrative responsibilities. As the head of the federal judicial branch, the chief justice leads the Judicial Conference, the policy-making body of the federal court system. He oversees the Administrative Office of the Courts and has the power to appoint and remove its director. And he is the chairman of the board of the Federal Judicial Center.

As the head of the federal judicial branch, the chief also has important ceremonial functions and regularly represents the judiciary’s interests in its relationships with the political branches. The chief swears-in the president-elect every four years on the steps of the United States Capitol. And the chief prepares annual reports about the state of the federal judiciary in which the chief can express his priorities for the federal courts.

The chief justice’s extrajudicial responsibilities also allow him to enjoy the finer things that D.C. has to offer. By title, the chief is authorized to serve on the Board of Regents of the Smithsonian Institution and the Boards of Trustees of both the National Gallery of Art and the Hirshhorn Museum and Sculpture Garden.

Two Centuries, 17 Chiefs: From John Jay to John Roberts

These far-reaching and sometimes eclectic duties of the chief justice would be virtually unrecognizable to jurists at the time of the founding. The chief justice position started off as a bit of a consolation prize, a side job that allowed the holder to kill time while working on grander political ambitions. Indeed, many influential men of that era declined when asked by the president to serve as chief justice.

The Republic’s First Chiefs

It would be a forgivable mistake to assume that John Marshall was the first chief justice. The tenures of his three predecessors were unremarkable. The first chief, John Jay, spent most of his time on the Court involved with extracurricular activities: running for governor of New York (unsuccessfully) in 1792; negotiating a new peace treaty with Great Britain in 1794; and again running for governor of New York (successfully) in 1795. The Jay Court heard only a handful of cases, the most memorable being Chisholm v. Georgia, in which it held that a federal court had jurisdiction over a lawsuit filed by a citizen of South Carolina against the State of Georgia.

Jay’s successor, John Rutledge, was an associate justice who was elevated to chief by President George Washington in a recess appointment. Rutledge’s tenure was short-lived: the Senate rejected his nomination after he gave an impassioned speech denouncing the treaty negotiated by Jay.

President Washington nominated Patrick Henry to fill the vacancy, but Henry declined. The president next turned to Associate Justice William Cushing, who also passed. Washington finally found his man in Oliver Ellsworth. Like Jay, Ellsworth was preoccupied during his time on the Court. He was a candidate for president in 1796, picking up 11 votes in the Electoral College, and traveled to Paris as President John Adams’s envoy in negotiations with Napoleon. Ellsworth resigned in 1800.

The Seeds of the Modern Chief Justice

Ellsworth was succeeded by John Marshall, an ardent Federalist and former secretary of state, who was nominated and confirmed in the closing days of the last Federalist administration and would serve on the Court into the administration of President Andrew Jackson. Chief Justice Marshall’s contributions to American jurisprudence are well known to any first-year law student. His contributions to the Court as an institution are equally significant.

Most significantly, Marshall elevated the stature of the Court — and of the judicial branch generally — with his landmark 1803 opinion in Marbury v. Madison. Marshall’s opinion invoked the principle of judicial review for the first time and established the Court as the ultimate arbiter of the constitutionality of legislative and executive actions.

Marshall set a precedent for longevity in the office of chief justice that has continued until the present day. In marked contrast to the brief tenures of his predecessors, Marshall remained on the bench for 34 years and died while still serving as chief justice. The next five chiefs all died while in office, including Marshall’s immediate successor, Roger B. Taney, who served for 28 years before his death in 1864 (and who is infamous for authoring the Dred Scott decision). Beginning with Marshall, the position of chief justice came to be viewed as the pinnacle of a legal career, rather than a jumping-off point for other political adventures.

Marshall also institutionalized the practice of announcing the Court’s decisions in a single written opinion. In most cases during the Court’s first decade, the justices delivered “seriatim” opinions, following the British tradition — with each offering his own views of the case. This practice began to wane under Chief Justice Ellsworth and disappeared almost entirely under Marshall. Seriatim opinions were replaced with a single “opinion of the court,” generally delivered by Chief Justice Marshall himself. In the early days of this practice, dissents and concurrences were rare. Those justices who disagreed with the logic or the result of the majority opinion typically acquiesced silently rather than authoring their own opinion. Separate concurring and dissenting opinions began to appear with greater frequency toward the end of Marshall’s tenure. But seriatim opinions were gone forever.

The Middle Years

Despite Chief Justice John Marshall’s elevation of the stature of the chief justice, it still was not a highly coveted position even by the late 1800s. When Chief Justice Salmon P. Chase died in 1873 after serving as chief since 1864, President Ulysses S. Grant waited six months before taking any action to fill the position. Then, Grant offered the position to three senators and Secretary of State Hamilton Fish, all of whom declined. Grant eventually nominated Attorney General George H. Williams, only to withdraw the nomination a month later in response to charges of corruption. Grant then nominated former Attorney General Caleb Cushing but withdrew that nomination too, this time in response to allegations of Civil War–era connections between Cushing and Confederate President Jefferson Davis. Ultimately, on January 19, 1874, Grant nominated Morrison Waite, who was confirmed unanimously three days later and became the seventh chief justice.

Although Waite had been a prominent lawyer from Ohio who himself had been offered, but turned down, a position on the Ohio Supreme Court, he proved to be a most unremarkable chief. In terms of the sheer volume of cases decided, Waite appears to have been more prolific than any other chief before or since. In his 14-year tenure as chief, the Court decided 3,470 cases, and Waite authored the dispositive opinion in 872 of them. Thanks to the Judiciary Act of 1891, which created circuit courts of appeals that would come to handle most appeals of decisions from federal trial courts (rather than having such appeals go straight to the Supreme Court, as had been the practice), the Court’s caseload was substantially diminished following Waite’s tenure. But despite his prolixity, Waite added little of lasting substance to the law.

Waite was succeeded by Melville Fuller, who was appointed by President Grover Cleveland to become the eighth chief. Fuller is known for initiating the custom — still in place today — for each justice to shake hands with every other justice before taking the bench.

Upon Fuller’s death, President William Howard Taft elevated Associate Justice Edward White. Some believe that this choice was strategic — that Taft, a Republican, elevated White, a Democrat who was sixty-five years old and overweight, rather than fellow-Republican Justice Charles Evans Hughes, in the hope that White would not remain in the position long and that Taft might therefore have a chance of being appointed to replace him. That is indeed what happened eleven years later in 1921. Taft famously said that there was no job he would love more than being chief justice — including, apparently, being president.

Before his election to the presidency in 1908, Taft had served as a federal judge on the newly created Sixth Circuit. When Taft was nominated by President Warren G. Harding to become chief justice, Taft became the first chief justice to have served as a judge on a lower federal court — a credential held by all members of the current Court other than Justice Elena Kagan. Taft is the only person to have served both as president and as chief justice.

Perhaps Taft’s greatest contribution to the Court was the courthouse itself. As chief, Taft lobbied successfully for the Supreme Court’s current building — a vast improvement over the Court’s previous quarters in the basement of the Capitol Building, where the justices lacked private chambers and occupied the symbolically awkward position of being beneath both houses of Congress.

Taft was succeeded by Charles Evans Hughes, who had resigned his job as an associate justice in June of 1916 to become the Republican candidate for president. After Hughes (barely) lost the 1916 election to Woodrow Wilson, Hughes served as secretary of state under Presidents Harding and Calvin Coolidge before being nominated by President Herbert Hoover to return to the Court as its 11th chief in 1930.

Hughes is probably best known for resisting President Franklin Delano Roosevelt’s effort to “pack” the Court with five additional justices. Hughes worked behind the scenes in Congress to defeat FDR’s proposal, including by sending a letter to the chair of the Senate Judiciary Committee arguing that an increase in the number of justices would impair the efficiency of the Court. Hughes also drafted the opinions for the Court in National Labor Relations Board v. Jones & Laughlin Steel Corp., which upheld the National Labor Relations Act, and West Coast Hotel Co. v. Parrish, which upheld a state minimum wage law, and overturned Adkins v. Children’s Hospital. (But it was Associate Justice Owen J. Roberts, not Hughes, who switched his vote to join the majority in West Coast Hotel — a switch that has come to be known as “the switch in time that saved nine.”) These decisions effectively ended the string of rulings in which the Court had struck down New Deal economic legislation, thereby resolving the constitutional crisis that led FDR to propose the Court-packing plan.

After Hughes’s death in 1941, FDR elevated Harlan Fiske Stone from associate justice to chief. Stone had been dean of Columbia Law School and then attorney general before joining the Court in 1925, and was the first chief not to have served in elective office. Stone also was the only justice to have occupied all nine seniority positions on the Court, having moved from the junior justice to the most senior associate justice and then to chief. He served as chief only until 1946, when he died of a cerebral hemorrhage suffered while preparing to read from the bench his dissent in Girouard v. United States (which held that an individual who had declared himself unwilling to fight for the United States for religious reasons could become a citizen).

After Stone’s death, President Harry S. Truman appointed Fred M. Vinson to become the 13th chief. In his first term as chief, Vinson employed Byron White as a law clerk. White went on to become the first former Supreme Court law clerk to become a justice himself (others include Chief Justice William Rehnquist, who clerked for Justice Robert H. Jackson, and Chief Justice John G. Roberts, who clerked for Justice Rehnquist).

The Modern Era

The year 1953 marks the beginning of what might be called the modern era of the office of the chief justice. The four most recent chiefs — Earl Warren, Warren Burger, William Rehnquist and John Roberts — each has contributed to the profile of the chief justice’s office. Each has also contributed substantively to the Court’s work, through his own written opinions and through less visible efforts.

Earl Warren

Earl Warren was appointed by President Dwight D. Eisenhower after having served three terms as governor of California and after an unsuccessful bid to be the Republican candidate for president in the 1952 election. Warren is widely known for having been gregarious, considerate, and well liked by his colleagues. Justice William J. Brennan Jr., dubbed him “the Super-Chief” for his effective leadership skills and remarked that “[i]t was impossible to dislike him.”

Chief Justice Warren’s most famous contribution as chief was his opinion for a unanimous Court in Brown v. Board of Education, which enshrined as the law of the land the principle that separate education facilities are inherently unequal. Warren not only wrote the opinion in Brown, but also was critical to its unanimity. Brown was first argued in December 1952, while Fred Vinson was chief justice. The justices were divided after argument and ordered further briefing for rehearing the next term. Chief Justice Vinson died in the interim, however, and it was Warren who presided over the argument in December 1953 — almost exactly a year after his colleagues had started their divisive deliberations.

Warren pressed hard to achieve agreement on a single decision. He made substantive compromises that allowed otherwise-skeptical justices to join and also employed his considerable diplomatic skills. Although his own view of the case, revealed in notes from the justices’ conference, was that the “separate but equal” theory of Plessy v. Ferguson was wrong, he suggested that the justices simply discuss the case that day rather than casting their votes. When he later circulated a draft opinion, he personally hand-delivered it rather than sending a messenger or clerk, and even made a personal visit to Justice Jackson in the hospital. In May of 1954, Warren announced the Court’s unanimous opinion. Many scholars view the opinion’s unanimity as a critical part of its authority and historical significance.

The Warren Court has received both praise and protest for its expansive constitutional rulings and its vision of the Court as a vehicle for social reform. Many significant opinions were decided under Warren’s leadership. Chief Justice Warren himself wrote Reynolds v. Sims, which held that the equal protection clause mandates the “one person, one vote” rule for drawing state legislative boundaries; Miranda v. Arizona, which prescribed the now-famous warnings to criminal suspects; and Loving v. Virginia, which held (unanimously) that Virginia’s antimiscegenation law violated the equal protection clause.

In addition to his duties in deciding cases, Chief Justice Warren was an active statesman who traveled widely around the world and helped organize international judicial conferences that advocated world peace. After his retirement in 1969, at the request of President Lyndon B. Johnson, Warren headed the commission — now known as the Warren Commission — that investigated the assassination of President John F. Kennedy.

Warren Burger

Warren Earl Burger served as chief justice from 1969 to 1986, after three years on the U.S. Court of Appeals for the D.C. Circuit. Unlike his predecessor, Burger was not known for his leadership. His colleagues expressed frustration with his management of the justices’ conferences, for example. Associate justices noted that his opening statement of the case was sometimes inaccurate, that the justices often interrupted each other, that conferences often extended into a second day, and that the chief occasionally recorded conference votes incorrectly. As to the last alleged failing, Justice Stevens recounts in Five Chiefs that Justice Harry Blackmun, who joined the Court soon after Burger became chief, would advise the conference of inaccuracies, and all agreed that Justice Blackmun should take over the task. Recording justices’ votes has been the duty of the junior justice ever since.

Notwithstanding Chief Justice Burger’s reported shortcomings in managing the conference, he presided over notable decisions, including some significant for their unanimity. In United States v. Nixon, Burger’s opinion for the unanimous Court required President Richard Nixon to produce oval office recordings, the substance of which ultimately led to his resignation. As Justice Stevens recounts, “[t]he decision not only had a historic effect on American politics and society but also powerfully illustrated the integrity and independence of the Court. It may well have done more to inspire the confidence in the work of judges that is the true backbone of the rule of law than any other decision in the history of the Court.” Burger also authored notable unanimous opinions in Swann v. Charlotte-Mecklenburg Board of Education, which addressed the courts’ authority to order busing in desegregation cases, and in Reed v. Reed, an Equal Protection case argued by now-Justice Ruth Bader Ginsburg in which the Court struck down an Idaho law favoring men over women as estate administrators.

Chief Justice Burger also oversaw important changes at the Court. In administrative matters, he limited the length of oral arguments and briefs; he arranged to have the long, straight bench at which justices sat during arguments replaced with the current U-shaped bench, which allows the justices to see and hear each other; and he instituted the present practice of the chief justice voting first, rather than last, at conference.

Burger also effected changes to maintain the Court’s heritage. He coordinated the creation of the Supreme Court Historical Society and the official position of “curator” of the Court. He also secured the statue of John Marshall from its former outdoor home on Capitol Hill, to be placed on the first floor of the Court building, where it now greets thousands of Court visitors each year.

William Rehnquist

Chief Justice Rehnquist was the only chief justice of the recent era who was “promoted” from the position of associate justice. His nomination in 1986 created an opening on the Court, which was filled by Antonin Scalia. In the years that followed, Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton nominated five additional justices: Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer. The Rehnquist Court, so constituted, served together for 11 years, the second longest the Court has gone without any changes in its membership.

Rehnquist became known for the enthusiasm and humor with which he embraced his role as chief justice. In 1995, inspired by the Gilbert and Sullivan opera Iolanthe, Rehnquist had four gold stripes added to each sleeve of his judicial robe. Asked why he felt compelled to add this adornment, he reportedly stated that he did not wish to be “upstaged by the women” — at that time, Justices Sandra Day O’Connor and Ruth Bader Ginsburg, who both often wore lace collars and decorative foulards. The chief also led the whole Court — justices, staff and visitors — in carols at the Court’s annual Christmas party. Chief Justice Rehnquist was also known for firmly correcting attorneys who addressed him as “justice” rather than “chief justice,” and for stopping attorneys midsentence if they exceeded their allotted argument time. Rehnquist is reported to have admonished the other justices as the end of the term approached that it was “time to stop thinking and start writing.”

Despite (or perhaps because of) these quirks, Chief Justice Rehnquist was viewed fondly by his fellow justices. Under his stewardship, the Court’s trains ran on time. Arguments and conferences began and ended on schedule. And although the Court frequently divided 5–4 in the Rehnquist years, each of the justices viewed him as a fair leader and a good friend.

The long-serving Rehnquist Court is responsible for numerous memorable opinions, many of which reflected the chief’s own vision of the law. Rehnquist was, for example, a firm believer in the sovereignty and dignity of the separate states — a view reflected in the frequency with which the Court struck down federal legislation as exceeding Congress’s commerce clause power, as in United States v. Lopez (1995), or as a violation of sovereign immunity, as in Seminole Tribe of Fla. v. Florida (1996). The Rehnquist Court, of course, also decided Bush v. Gore, a case that divided the Court and the nation.

John Roberts

John Roberts served as a law clerk to Justice Rehnquist during the 1980 Term. Twenty-five years later, in 2005, Roberts became the 17th chief justice of the United States.

Chief Justice Roberts chose not to follow all of the traditions or whims of his former boss. Roberts does not wear gold stripes on his robe and does not cut advocates off midsentence if they exceed their allotted time. He also is reported to permit more discussion at conferences, leading Justice Stevens to call him a “better presiding officer” than Rehnquist (whom Stevens also admired greatly).

As for Roberts’s jurisprudence, time will tell. In his first seven years, he has presided over many controversial questions of constitutional law; he has written accessible and sometimes witty opinions, quoting sources from Bob Dylan to Charles Dickens; and he has spurred a national conversation over whether Supreme Court justices should — or do — play a role equivalent to a baseball umpire when deciding cases (as Roberts suggested in his confirmation hearings).

Whether like an umpire or not, we expect that Roberts agrees with Taft that there is no more interesting job.

[Editor’s note: This article was first published before the Roberts Court issued its decision on the Affordable Care Act in June. With Roberts’s surprising vote, he certainly made a place for himself in the history books.]

KRISTIN LINSLEY MYLES, MICHELLE FRIEDLAND, MIRIAM SEIFTER and MICHAEL MONGAN are litigators at Munger, Tolles & Olson in San Francisco and all clerked at the Supreme Court — for Justices Scalia, O’Connor, Ginsburg and Souter, respectively. AIMEE FEINBERG, who clerked for Justice Breyer, was a litigator in MTO’s San Francisco office until she recently became a lecturer at the UC Davis School of Law.

This article is reprinted with permission from The Bar Association of San Francisco's San Francisco Attorney magazine, March 2012. Special thanks to Ann Murphy and Suheyl Aktari.