1702692740
1702692741
1702692742
1702692743
1702692744
4. William O. Douglas, photographed on March 20, 1939, the day of his nomination to the Supreme Court by President Franklin D. Roosevelt. At the age of forty, Douglas was the youngest man ever named to the Court, and he served the longest, retiring in 1975 after thirty-six years.
1702692745
1702692746
Finally, another word about the incipient debate over the merits of life tenure for Supreme Court justices. The debate is largely confined to the legal academy and may well never go farther, but it is illuminating of demographic trends and perceptions. When the Constitution was being debated, life tenure for judges was not a given. Thomas Jefferson opposed it, arguing for renewable terms of four to six years. But the Framers chose to protect judicial independence by a guarantee of tenure “during good Behavior” as well as by providing that a judge’s salary could not be reduced.
1702692747
1702692748
Today, however, criticism comes from both the Right and the Left, from scholars who argue that when justices linger well into advanced old age in order to time their retirements according to political loyalty, and when presidents try to project their legacies far into the future by seeking ever younger nominees, life tenure exerts a distorting effect on both the institutional life of the Supreme Court and the political life of the country. Certainly justices are living longer and staying longer. Between 1789 and 1970, justices served an average of fifteen years. Between 1970 and 2005, the average jumped to more than twenty-six years. The Court went without a vacancy for eleven years between 1994 and 2005, the longest period without turnover since the 1820s.
1702692749
1702692750
Removing life tenure directly would require a constitutional amendment, an arduous if not impossible task. So some advocates of change have proposed a statutory work-around that would achieve much the same result: continuing to appoint justices for life, but establishing that the term of active service would be eighteen years. A justice would then move into the semi-retired ranks, similar to the system in place for the lower federal courts, available to be called upon to break a tie when only eight justices would otherwise be available to sit, or for other judicial duties. The opening for a position as one of the nine active justices would then be taken by a new appointee. Under this system, a new justice would be appointed every two years. In other words, every president would get two appointments, thus regularizing the current randomness with which vacancies now occur. No president would have to suffer the drought that Jimmy Carter faced, without a single Supreme Court vacancy to fill during his presidency.
1702692751
1702692752
The critics of life tenure note that all other constitutional democracies, while borrowing much from the American example, including the norm of judicial independence, have rejected life tenure for their high court judges. Canada, Australia, Israel, and India, for example, impose fixed age limits, while the constitutional courts of Germany, France, and South Africa have fixed terms. Among the fifty states, only Rhode Island has placed no limits on the tenure of the judges on its state supreme court.
1702692753
1702692754
The critique of life tenure may never gain public traction in the United States. But it poses the provocative question of where protection for judicial independence most reliably lies: on paper alone, or in a country’s culture of learned expectations from courts that in turn preserve public trust with reasoned judgment.
1702692755
1702692756
1702692757
1702692758
1702692759
美国最高法院通识读本 [:1702690385]
1702692760
美国最高法院通识读本 Chapter 4The chief justice
1702692761
1702692762
Article III, the judicial article of the Constitution, does not even bother to mention a chief justice. Clearly, the Framers intended there to be one, but we can derive that intention only by inference from the text of the Constitution itself—from the explicit requirement in Article I for the chief justice to preside over the Senate trial in any impeachment of a president. Chief Justice William H. Rehnquist, asked later to describe his role in the 1999 impeachment trial of President Bill Clinton, replied with a smile:“I did nothing in particular, and I did it very well.”
1702692763
1702692764
No matter what the Framers envisioned, no one would maintain today that the chief justice does nothing in particular. The office has grown enormously over the intervening centuries, both by statute and custom. A 2006 study compiled a list of eighty-one separate provisions by which Congress has conferred on the chief justice a specific duty or power. These range from directing the purchase of law books by the Library of Congress to appointing the eleven judges of the special court that authorizes the government to conduct foreign intelligence searches and wiretaps. The chief justice is, by law, a trustee of the National Gallery of Art and the Smithsonian Institution; presides over the Judicial Conference of the United States, which sets policy for the federal judiciary; and certifies the disability and eligibility for early retirement of another justice should that occasion arise.
1702692765
1702692766
The single most important power the chief justices exercise may still be to cast one of the nine votes that determine the outcome of a Supreme Court case. To the sixth chief justice, Salmon P. Chase, that was the only function that really mattered. “The extent of the power of the Chief Justice is vastly misconceived,” Chase wrote in a letter in 1868. “In the Supreme Court he is but one of eight judges, each of whom has the same powers as himself. His judgment has no more weight, and his vote no more importance, than those of any of his brethren. He presides, and a good deal of extra labor is thrown upon him. That’s all.”
1702692767
1702692768
Even if the chief justice is simply first among equals on the bench, a 21 st century perspective on the job requires a broader appreciation of its power. It is more accurate to think of the chief justice today as a CEO, chief executive not only of the Supreme Court but of the entire judicial branch. The typical career path to the federal bench offers little preparation for such a multifaceted role. The best-prepared chief justice of the past century was undoubtedly William Howard Taft, the tenth chief justice, who had also been the twenty-seventh president. Taft, who served from 1921 to 1930, was, not surprisingly, one of the most effective chief justices.
1702692769
1702692770
Prior service on the Court is also useful preparation, although uncommon. Of the seventeen men who have served as chief justice, only four previously served as associate justices. Three—Rehnquist, Edward Douglass White, and Harlan Fiske Stone—received their promotions while they were sitting on the Court.(John Rutledge, George Washington’s failed chief justice nominee, is not counted on this list because he never took the seat to which he had been confirmed as an associate justice.) The fourth former associate justice, Charles Evans Hughes, had resigned from the Court in order to run for president in 1916. Fourteen years later, on the death of Chief Justice Taft, President Herbert Hoover chose Hughes as the next chief justice.
1702692771
1702692772
1702692773
1702692774
1702692775
5. Chief Justice William Howard Taft, pictured at the start of his tenure in 1921. He is the only person to have served both as president and as a member of the Supreme Court.
1702692776
1702692777
Even if previously confirmed to the Court, a nominee for chief justice must receive a separate Senate confirmation and a new commission. As a matter of confirmation politics, that requirement perhaps serves as a disincentive for a president to elevate a sitting justice. As happened when President Reagan selected William Rehnquist for elevation in 1986, the confirmation process can easily turn into a referendum on the nominee’s Supreme Court career so far, as well as on the direction of the Court as a whole.
1702692778
1702692779
The title we use today, Chief Justice of the United States, is obscure in origin. Neither the first Judiciary Act, nor the Constitution itself, says anything more elaborate than “chief justice.” The unwieldy “Chief Justice of the Supreme Court of the United States”later came into use. In the 1860s, Congress began using the current title, which appeared on Melville W. Fuller’s commission as chief justice in 1888.
1702692780
1702692781
Tradition, rather than statute, dictates much of how the chief justice operates in the job’s purely judicial capacity. He runs “the Conference,” the Court’s word for the justices as a collective. When he has voted in the majority on a case, he exercises the prerogative of assigning either himself or one of the other justices in the majority to write the opinion. When the chief justice is in dissent, the senior justice in the majority makes the assignment.
1702692782
1702692783
The Court’s practice is for the justices to write an approximately equal number of majority opinions over the course of the term. But the assignment function involves considerably more thought and strategy than simply going down a checklist. Just because five justices make up a majority to reverse or affirm a lower court decision does not mean that all five see the issues the same way or feel equally committed to the outcome or the rationale. So in a close case in which the majority’s hold may be tenuous, it is rather common for the justice who is making the assignment—whether the chief justice or an associate—to give the writing assignment to the colleague whose commitment to the majority view appears the least firm. The expectation then is that the act of articulating the majority’s reasons will persuade the wavering justice and forestall that most undesired outcome—defection by a justice who becomes persuaded that the dissent has the better of the argument.
1702692784
1702692785
That happens occasionally nonetheless. For example, the Court was closely divided during its 1991 term on the question of whether a prayer by a member of the clergy during a public high school’s graduation exercise violated the constitutional separation of church and state. A federal appeals court had ruled that it did, and the Supreme Court agreed to hear the school district’s appeal. After the argument, the justices voted 5 to 4 in Lynch v. Donnelly (1992) to reverse the lower court’s decision and declare the clergy-led prayer constitutional. Chief Justice Rehnquist assigned the majority opinion to Justice Anthony M. Kennedy. While working on his opinion over the course of several months, Kennedy concluded that he was on the wrong side of the case—a conclusion that meant that the case would now come out the other way. Kennedy informed both the chief justice and Justice Harry A. Blackmun, who had been the senior associate justice on the dissenting side. “After writing to reverse in the high school graduation prayer case, my draft looked quite wrong,” Kennedy informed Blackmun by letter, adding that he had rewritten his draft opinion to uphold the lower court’s finding of unconstitutionality. The case was now Blackmun’s to assign, and he told Kennedy to keep the assignment. Kennedy kept working, making some modifications to satisfy Blackmun and the other former dissenters. Several months later, in June 1992, the Court issued its 5-to-4 decision invalidating clergy-led prayer at public school graduation ceremonies. This behind-the-scenes drama remained unknown outside the Court for the next twelve years, until Justice Blackmun’s papers were opened to the public at the Library of Congress.
1702692786
1702692787
Control over the opinion assignments is an important source of power for the chief justice. Opinions can be written narrowly or broadly to reach the same result. A chief justice who wants to drive a doctrine in a certain direction, or keep an idea from gaining altitude, and who understands his colleague’s styles and preferences can use the power to good effect. Still, at the end of the day, the chief justice, like the others, has only one vote.
1702692788
1702692789
Beyond managing the Court’s judicial business, with the assistance of four law clerks, the chief justice is also in charge of a building where more than four hundred employees work. The Court has its own separate police force. It has a staff to manage a complex paper flow. Roughly 150 new appeals arrive every week, along with a steady flow of briefs in cases scheduled for argument. Each must be checked to ensure compliance with all the rules. Was the brief filed on time and within the word limit? Is its cover the right color? (The type of filing dictates the color of the cover, so that it can be seen at a glance whether the brief is a petition in a new case [white], a brief on the merits for the side defending the lower court’s judgment [red], or a brief from a “friend of the court” [dark or light green, depending on which side the “friend” is supporting].) Sets of the filings for the week are placed on nine rolling carts for distribution to the justices’ chambers. The Clerk of the Court (a senior official, not to be confused with a law clerk) supervises this process, while the Marshal is in charge of security. The chief justice also has an administrative assistant who takes on significant duties both inside the building and outside, serving as the chief’s liaison with agencies within the judicial branch.