For example, advocates for extending the civil rights protections of the constitution to homosexuals have tried to wait out the sure to be hostile Rehnquist Court.

They have? Within the past eight years, gays have won not one but two landmark victories at the Court: Romer v. Evans and Lawrence v. Texas. If this is the waiting period, I can't imagine what the active period is going to look like.

A couple of things re: Lithwick's points. First, in playing up the CJ's "agenda-setting" power, she makes it sound like the Chief is the one who determines which cases the Court hears. He doesn't. Petitions are circulated among all nine justices and all nine justices get a vote on whether or not a given petition should be granted. If a petition receives four votes, a writ of cert is issued and the case is accepted. The fact that the Court currently has four stalwart liberal members (Stevens, Souter, Ginsburg, and Breyer) means those justices collectively have great power as a voting bloc in bringing certain cases before the Court no matter how the Chief may feel about the matter.

As for the Chief's power to assign opinions, let's keep a little perspective, please. Lithwick mentions, but glosses over, the fact that the CJ can only assign an opinion to someone on his side; if he's in the minority then the majority opinion is assigned by the senior-most justice in the majority. This is hugely important when, as now, the Chief and the senior-most justice (Stevens) are of different political stripes. Since they often end up on different sides, Stevens acts as a de facto CJ each and every time the liberal bloc on the Court can persuade one of the swing justices to vote with it. In those instances, he "shapes the Court" every bit as much as Rehnquist does. He's made shrewd use of his power, too: he could have assigned the Romer and Lawrence opinions to himself but instead he assigned them to Kennedy, thereby giving a swing justice a personal investment in protecting those precedents in the future. The bad news for liberals is that Stevens is 84, but the mitigating news is that the next senior-most justices after him are O'Connor, Scalia, Kennedy, and Souter -- three of whom have voted in the past to reaffirm Roe v. Wade and in favor of gay rights. Simply put, the assignment power is in no danger of being monopolized by hardcore social conservatives.

Finally, and most importantly, the examples of John Marshall and William Howard Taft cited by Lithwick are anachronistic. It's true that for a long period in the Court's history, justices who agreed with most but not all of a majority opinion were expected to bite the bullet and sign on to the whole thing. That's why you see so many unanimous decisions authored by the Chief Justice in older cases. But things are very different today. Beginning in the 1960s, justices became much bolder about writing concurring opinions, which typically take the form of "I agree with the gist of the majority opinion but I disagree with one particular point" or even "I completely disagree with the majority opinion but I think they arrived at the right result." (See here for a few examples.) This practice has now evolved to the point where majority opinions are frequently divided into different numbered sections so that swing justices can specify which sections they do and don't concur with. Why is that significant? Because by withholding the all-important fifth vote from a particular section of an opinion, the swing justice denies that section the force of law and strips it of the precedential value it would otherwise have. The end result is that it's the swing justice, not the CJ, who ultimately determines the potency of the opinion.

To illustrate, imagine that the Court is voting on a gay rights case and the new hardline right-wing Chief Justice has somehow managed to persuade a reluctant Kennedy and O'Connor to vote with Scalia, Thomas, and himself to form a majority. To whom does he assign the opinion? If he assigns it to Kennedy or O'Connor, he shores up their votes and preserves his majority -- but at the cost of a much more moderate opinion than he himself would have written. If he assigns it to himself or Scalia, he gets the rhetorical fireworks he wants -- but then he risks alienating Kennedy and O'Connor, each of whom can withhold their vote with respect to one or more sections of the opinion or, if they're really uncomfortable, can simply bolt the majority entirely and join with the liberal minority to form a new majority. Either way, the swing justice controls the game. On the Court as in the electorate, it's the moderates who hold all the power. And a good thing, too.

Ultimately, the most prominent duty a Chief Justice has is as a figurehead for the Court. That, I suspect, is why liberals really fear a Scalia or Thomas being appointed to the top spot: It'll "look bad". And there'll be much teeth-gnashing and lamentation if it happens, even though it would be the best thing to happen for the liberal side. Scalia is too much of a bombthrower and Thomas too much of an ideologue to compromise with the swing justices and build a moderate conservative consensus. All they'd end up doing is scaring Kennedy into the liberal camp, thus making him the John Paul Stevens of the new millennium. Thus, Bush needs a vote-builder, not a rhetorician, to replace Rehnquist. I just hope he's grounded enough to realize that.