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Chief justice is plum role

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It is common for people who have not studied the history of the body to be rather dismissive of the role of Chief Justice of the Supreme Court of the United States. On the surface, the role does not confer any additional powers. Doubters will point out that the chief justice gets only one vote like the rest. But, the zetetic know better. As is the case with many administrative jobs, there are hidden attributes to being chief justice. The most apt term to summarize them is, I believe, ‘agenda setting.’ Now that the current chief justice, William Rehnquist, is likely dying of thyroid cancer, the question of who will assume the role next is the object of much speculation. Dahlia Lithwick,
writing at Slate, has explained why who is chief justice matters.

The trick to understanding the chief justice’s real role in shaping a court has to do with the myriad subtle ways in which any savvy administrator can effect vast policy changes. Having the authority to send around initial cases for discussion gives the chief justice tremendous power to shape the court’s agenda, for instance, as does his power to introduce and offer the first vote at case conferences. Historically, some of the most powerful chief justices have exercised their influence by stifling dissent. In his first four years as chief justice, John Marshall (chief from 1801-1835) was so insistent that all opinions be unanimous that he simply authored all of them—save for those published per curiam (or unsigned)—himself. In those four years there was only one published dissent. As chief justice, William Howard Taft (1921-1930) espoused the same philosophy: Dissents fostered an appearance of uncertainty and were only a form of egotism anyhow, in his view. So over Taft’s tenure, the high court issued unanimous opinions 84 percent of the time.

The big stealth power for any chief justice lies in his ability to assign written opinions whenever he votes with the majority in a case. If he votes with the minority, the most senior judge in the majority does the assigning. Chief Justice Charles Evans Hughes (chief from 1930-1941) regarded his opinion-assignment power as “a special opportunity for leadership” and, as a consequence, his “most delicate task.” It doesn’t sound like a big deal, but consider Warren Burger, chief justice from 1969 to 1986. In The Brethren, Bob Woodward describes Burger’s assignment strategy as having two components: shifting his vote after conference so as to retain the assignment power (even if it meant voting against his originally stated views) and then assigning only lame opinions to his enemies.

According to Woodward, Burger’s strategy was to keep all the big criminal law, racial discrimination, and free-speech cases away from his ideological “enemies,” as he called William Brennan, Thurgood Marshall, and William O. Douglas— as well as to author all the unanimous opinions himself. That way it looked as if his wisdom was indisputable and his leadership unparalleled. Burger also did a tremendous amount of politicking as chief—giving policy speeches and attending conferences, as well as shamelessly pressuring the other justices to vote with him for blatantly political reasons.

Lithwick notes that swing vote justices Sandra Day O’Connor and Anthony Kennedy will have had greater impact on case law emerging from the Supreme Court over the last decades. But, Rehnquist has also been influential. He has engaged in the usual agenda setting of activist chief justices. In addition, his reputation as a hidebound conservative has influenced the legal strategies of lawyers considering controversial issues everywhere. 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.

The chief justice of SCOTUS shapes a court. That court shapes society.

Reasonably related

The ailing Rehnquist had a troubling history before being appointed to the Supreme Court.

Note: This entry also appeared at Mac-a-ro-nies.

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  • alethinos59

    Excellent post Mac…

  • Eric Olsen

    very interesting information, thanks!

  • NC

    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.

  • alethinos59

    Very good post NC

  • NC said:

    Within the past eight years, gays have won not one but two landmark victories at the Court: Romer v. Evans and Lawrence v. Texas.

    But, they purposely did not raise the big issue that would cover everything — inclusion under Equal Protection Clause protection. It would be far superior to piecemeal litigation of every facet of gay life. Advocates held off because they were hoping for a more open-minded Court.

    Furthermore, the sexual acts you refer to are not ‘for homosexuals only.’ So, the victory was not for gay rights per se.

  • Perhaps appointing Bill Clinton as Chief Justice would be perfectly acceptable to those who claim it doesn’t matter all that much who the Chief Justice is.

    Or, perhaps, that idea might make them suddenly realize just how much they really do care who gets put into that post.

    (Not that Mr. Clinton has a snowball’s chance of being appointed by the current President or confirmed by the current Senate, of course. He’s just a mighty useful hypothetical example to prove the utter hypocrisy of those who try to claim the Chief Justice is no more influential than any other Supreme Court justice.)

  • LOL! Oh, Victor! You said the two words that drive conservatives to apoplexy.

  • Eric Olsen

    Bill Clinto nwould make an excellent Supreme Court Justice, Chief or otherwise