University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 154 JUNE 2006 NO. 6 SYMPOSIUM THE CHIEF JUSTICE AND THE INSTITUTIONAL JUDICIARY FOREWORD THEODORE W. RUGER This issue of the University of Pennsylvania Law Review takes as its subject one of the most important, and least studied, major offices in American government the Chief Justice of the United States. It is a fit time to engage in such an inquiry: last summer s passing of Chief Justice William H. Rehnquist, and the subsequent confirmation of John G. Roberts to fill his seat, focused rare attention on the particular features and powers of the office. The role that Chief Justice Roberts now occupies is vast in terms of public stature, importance to the workings of the Supreme Court, and broad influence over the federal judiciary and federal law generally. Assistant Professor, University of Pennsylvania Law School. (1323)
1324 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 154: 1323 The high status and generous authority of the office were not always in place. Felix Frankfurter, in a biographical speech on a number of Chief Justices delivered a half-century ago, commented on the curious career path of the nation s first Chief Justice: John Jay. 1 Jay resigned the office in 1794 to become governor of New York. 2 By Frankfurter s time such a decision was virtually unthinkable, so much so that he declared that only a madman, a certified madman, would resign the chief justiceship to become governor. 3 Frankfurter meant no disrespect to the governorship of New York, 4 but instead based his opinion on the significant increase in the prestige and power of the Chief Justice of the United States that had taken place over the preceding 150 years. Frankfurter noted the remarkable chief justiceship of John Marshall as one foundation of the office s increased status, but also described more recent changes that had occurred in his lifetime, during the early twentieth century. 5 By the time of Frankfurter s assessment at mid-century, the office of Chief Justice had come to possess significant centralized authority over both the Supreme Court and the broader federal judiciary. As Judith Resnik and Lane Dilg detail in their comprehensive account of this issue, today the Chief Justice not only chairs the Supreme Court, but also serv[es] as the leader of the federal judiciary, an entity comprised of some two thousand judges, as well as some thirty thousand personnel working in more than eight hundred facilities around the United States, and funded by a budget in excess of five billion dollars annually. 6 The scope and structure of the Article III judiciary, and the office of Chief Justice at its head, could hardly have been foreseen by the framing generation. The Constitution s grant of judicial power is famously unspecified Article III speaks only of a supreme Court, and... such inferior Courts as the Congress may from time to time ordain and establish, and nowhere mentions the chief justiceship. 7 That office appears only once in the Constitution s text in Article I s 1 Felix Frankfurter, Chief Justices I Have Known, 39 VA. L. REV. 883, 884 (1953). 2 CONGRESSIONAL QUARTERLY, THE SUPREME COURT AT WORK 128 (1st ed. 1990). 3 Frankfurter, supra note 1, at 884. 4 He took pains not to underrate the importance of that office either then or now. Id. 5 See, e.g., id. at 898 (describing the reforms of Chief Justice Taft). 6 Judith Resnik & Lane Dilg, Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States, 154 U. PA. L. REV. 1575, 1579 (2006). 7 U.S. CONST. art. III, 1.
2006] FOREWORD 1325 description of the impeachment process for the President. 8 The first men to hold the post were commissioned as the Chief Justice of the Supreme Court of the United States, 9 a title that aptly described a leadership role that was important, but largely circumscribed within the Court itself. Instead of textual specificity or original intent, the growth of the modern chief justiceship and the federal judiciary generally is a product of episodic statutory and customary development. By the late nineteenth century the statutory title had changed to be Chief Justice of the United States, 10 although the power of the office was still largely centered within the Court itself. 11 It was for the next generation to expand the breadth of the office fundamentally, a change which gathered momentum throughout the twentieth century and continues today. There is now little doubt of the Chief Justice s influence both within the Court and beyond, in numerous roles relating to the broader federal judiciary. The Chief Justice appoints dozens of judges to important specialized tribunals and to committees of the Federal Judicial Conference, delivers an important state of the judiciary address, and oversees a large staff and budget. Scholars of the federal judiciary and the Supreme Court have in one sense recognized the unique influence of the office of Chief Justice, and have taken to denominating entire Supreme Court eras by the occupants of that post. But the focus of such scholarship is necessarily episodic, focusing on a particular Chief Justice within a particular set of Supreme Court Justices at a certain place and time. As such it runs the risk of at once understating and overstating the role of Chief Justice. The overstatement arises from the fact that other Justices are occasionally more pivotal than the Chief in shaping the Court s jurisprudence in close cases during certain eras witness the apt scholarly focus on Justice Brennan when assessing the Warren Court, 12 and Justices O Connor and Kennedy during the Rehnquist Court era. 13 8 See U.S. CONST. art. I, 3, cl. 6 ( When the President of the United States is tried, the Chief Justice shall preside.... ). 9 John M. Daniel, III, Chief Justice of the United States: History and Historiography of the Title, 1983 Y.B. SUP. CT. HIST. SOC Y 109, 109-10. 10 28 U.S.C. 1 (2000). 11 Resnik & Dilg, supra note 6, at 1593-94. 12 See, e.g., MORTON J. HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE 8 (1998) (describing Justice Brennan as the most important intellectual influence on the Warren Court ). 13 See, e.g., Erwin Chemerinsky, October Term 2002: Value Choices by the Justices, Not Theory, Determine Constitutional Laws, 6 GREEN BAG 2d 367, 377 (2003) (discussing the
1326 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 154: 1323 The epochal approach, however, with its focus on specific individuals at a specific time, also risks understating the longitudinal development and broader scope of the Chief Justice s office. What is rarely found in current literature is a more complete treatment of the office itself, one removed from a specific biographical focus on the particular men who have held the seat and other Justices with whom the Chief Justice shares the Supreme Court. To be sure, strongminded Chief Justices like John Marshall, William Howard Taft, and William H. Rehnquist did much to shape and increase the powers of the office, and must be part of any discussion of the Chief Justice s general authority. But the growth and current power of the office transcend the individuals who have held it, and these and other features of the chief justiceship merit academic consideration of the office in the same way scholars have treated the presidency, the Congress, and other basic institutional components of the current federal government. This symposium represents an effort to provide such a general scholarly treatment of the office of Chief Justice, from a variety of methodological perspectives. The papers include contributions by historians, political scientists, comparative law experts, and other legal scholars, each exploring a unique aspect of the office s growth and current authority, or the similar development of court structures in other countries. Contributors consider both the internal and external features of the Chief Justice s role, and many are explicitly normative, advancing alternative structures whether comparative or hypothetical to reform and regularize the significant authority that the Chief Justice currently wields. As noted above, there is little original understanding of the Chief Justice s role the office is a creature of subsequent evolution and development. Much of that history took place soon after the Framing, however, and certainly the fourth occupant of the post, John Marshall, did as much as any Chief Justice to form the powers and stature of the office that resonate even today. Natalie Wexler s symposium essay in this volume illustrates the manner in which the office took shape even before Marshall s tenure, as she explores and illuminates the choices made by the first three Chief Justices: John Jay, John Rutledge, and Oliver Ellsworth. 14 Charles Hobson follows with a de- Rehnquist Court but opining that [f]or better or worse, this really is the O Connor Court ). 14 Natalie Wexler, In the Beginning: The First Three Chief Justices, 154 U. PA. L. REV. 1373 (2006).
2006] FOREWORD 1327 tailed examination of John Marshall s role in inventing the office of Chief Justice, concluding that Marshall s long tenure, spanning the American federal republic s first generation, provided him the opportunity to define indeed, invent the office of Chief Justice in ways that his three short-term predecessors could not have done and that foreclosed the same opportunity to his successors. 15 Despite the preeminent role that John Marshall played in establishing the role of the Chief Justice in Supreme Court adjudication, the office continues to evolve under the influence of each new occupant. Although perhaps not as dramatic a transformation as engineered by Marshall, the late Chief Justice Rehnquist also left his own distinct legacy. Linda Greenhouse brings the distinguishing elements of Rehnquist s leadership style into sharp relief by contrasting his tenure with that of his predecessor, Warren Burger. 16 In her estimation, Rehnquist s leadership was an improvement on Burger s in many respects, perhaps as a result of lessons Rehnquist learned observing his boss during his time as an Associate Justice. 17 Erwin Chemerinsky also provides a positive assessment of Chief Justice Rehnquist s tenure as leader of the Court, noting that Rehnquist s success is evident in the degree to which the rest of the Court adopted his views in majority decisions reached under his leadership. 18 The influence of the Chief Justice over the decisions of the Court as a whole is governed not only by the character of the individual that holds the office, but also by the administrative functions that the Chief Justice performs. One of the most crucial strategic powers that the Chief Justice currently holds is the power to assign opinions when in the majority. By selecting the author of key rulings (or by keeping authorship to himself), the Chief Justice can influence doctrinal form and rationale, and these choices often resonate in future cases and lower courts much more significantly than the unadorned outcome of a Supreme Court case. Even this basic power was unformed in the early days of the office, however, and G. Edward White s essay in this issue explains the manner in which this power, and the norms of internal opinion circulation at the Supreme Court more generally, took 15 Charles F. Hobson, Defining the Office: John Marshall as Chief Justice, 154 U. PA. L. REV. 1421, 1459 (2006). 16 Linda Greenhouse, How Not To Be Chief Justice: The Apprenticeship of William H. Rehnquist, 154 U. PA. L. REV. 1365 (2006). 17 Id. at 1367. 18 Erwin Chemerinsky, Assessing Chief Justice William Rehnquist, 154 U. PA. L. REV. 1331 (2006).
1328 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 154: 1323 shape during the nineteenth century. 19 Many readers may be surprised to learn from Professor White s essay that the norm of internal opinion circulation and review was not established until the early twentieth century, meaning that many of the great opinions of the nineteenth century that remain the grist of constitutional law classes today were never reviewed or endorsed by other Justices prior to issuance. 20 Although the customs of opinion circulation have changed with time, the basic authority to assign remains with the Chief Justice most of the time. Paul Wahlbeck assesses the recent use of that power by the late Chief Justice Rehnquist. 21 Applying empirical analysis to the Rehnquist assignment decisions, Wahlbeck concludes that the Chief Justice can use opinion assignment to advance his policy goals, [but] he cannot pursue that objective without constraint. 22 Another essay, by Frank Cross and Stefanie Lindquist, also takes an empirical view of the Court s decision making, analyzing the impact of William Rehnquist s role as Chief Justice on the voting patterns of the Court in recent Terms. 23 Also dramatic has been the change and growth of the Chief Justice s authority beyond the Court, in areas relating to the management and leadership of the broader Article III judiciary. Judith Resnik and Lane Dilg trace that development in their essay, finding evidence of the Chief Justice s rising influence across a range of statutes and institutional forms. 24 For Resnik and Dilg, the structure of the office creates a democratic failure. 25 My own contribution to the Symposium offers a different set of theoretical objections to the Chief Justice s current authority. I argue that the Chief s power is incongruous and inappropriate in that it is held and exercised by the Chief Justice individually, and not shared with other judges or constrained 19 G. Edward White, The Internal Powers of the Chief Justice: The Nineteenth-Century Legacy, 154 U. PA. L. REV. 1463 (2006). 20 See id. at 1499-1501. 21 Paul J. Wahlbeck, Strategy and Constraints on Supreme Court Opinion Assignment, 154 U. PA. L. REV. 1729 (2006). 22 Id. at 1734. 23 Frank B. Cross & Stefanie Lindquist, The Decisional Significance of the Chief Justice, 154 U. PA. L. REV. 1665 (2006). 24 Resnik & Dilg, supra note 6. 25 See id. at 1634.
2006] FOREWORD 1329 by any norm of reason giving, constraints that accompany much of Article III discretion. 26 These concerns about the scope of the office s authority also give rise to fundamental debates about the appropriate tenure and selection mechanisms for those who will hold the mantle of Chief Justice. The life-tenured status of the chief justiceship of the United States is rare among the world s national judiciaries. This feature of the office implicates a broader discussion going on in the legal academy about requiring through constitutional amendment or dramatic change in practice Supreme Court Justices generally to serve for a fixed, certain time period instead of for life. Resnik and Dilg s article concludes with a discussion of shortening the Chief Justice s term, either by congressional practice or by financial incentive. 27 Stephen Burbank s contribution responds to this and related arguments by drawing on legal and political science research to underscore a range of negative consequences that might flow from a change in the tenure length of Justices generally and the Chief Justice specifically. 28 Edward Swaine s article is also a part of this reformative debate, as he proposes altering the method by which the Chief Justice is chosen, or, at the least, better understanding the costs and benefits of the current appointment process. 29 In considering alternative mechanisms of structuring the office and authority of the Chief Justice, the choices that other countries have made when faced with similar structural decisions may be highly relevant, or at least can illuminate and inform scholars of the U.S. federal judiciary about other systems in place elsewhere in the world. Three articles in this volume take up these comparative questions and describe the manner in which other nations have established quite different frameworks for their institutional judiciaries, including the tenure and authority of the chief judge within those structures. Mark Ramseyer and Eric Rasmusen s article describes a Japanese judiciary that is hierarchical and careerist in comparison with the U.S. model, a structure which may impact the decisional outcomes of cases. 30 Peter 26 Theodore W. Ruger, The Chief Justice s Special Authority and the Norms of Judicial Power, 154 U. PA. L. REV. 1551 (2006). 27 Resnik & Dilg, supra note 6 at 1644-49. 28 Stephen B. Burbank, Alternative Career Resolution II: Changing the Tenure of Supreme Court Justices, 154 U. PA. L. REV. 1511 (2006). 29 Edward T. Swaine, Hail, No: Changing the Chief Justice, 154 U. PA. L. REV. 1709 (2006). 30 J. Mark Ramseyer & Eric B. Rasmusen, The Case for Managed Judges: Learning from Japan After the Political Upheaval of 1993, 154 U. PA. L. REV. 1879 (2006).
1330 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 154: 1323 E. Quint describes a German constitutional court whose chief performs a different function from the U.S. counterpart, and serves for a fixed and defined term of office. 31 And Kim Lane Scheppele s contribution illuminates the particular challenges and opportunities facing the fledgling high courts of several new post-soviet constitutional regimes. 32 The totality of these papers presents a multifaceted view of the office of Chief Justice that, in terms of topical variety and methodological diversity, has probably never been collected in a single volume. There is much ground left open, however, and much discussion should take place on the issues and reforms suggested in this group of papers. The past two centuries have seen a steady increase in the prestige, importance, and authority of the Chief Justice, particularly in his role as head of the institutional judiciary. As this momentum continues, the issues raised in this Symposium will become even more important. 31 Peter E. Quint, Leading a Constitutional Court Perspectives from the Federal Republic of Germany, 154 U. PA. L. REV. 1853 (2006). 32 Kim Lane Scheppele, Guardian of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe, 154 U. PA. L. REV. 1757 (2006).