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