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美国最高法院通识读本 Chapter 4The chief justice
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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.”
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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.
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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.”
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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One of these agencies is the Administrative Office of the United States Courts. As its name implies, the “A.O.” is the federal judiciary’s bureaucratic nerve center. The chief justice chooses the Administrative Office’s director, who remains answerable to him. The federal court system, with 1,200 life-tenured judges, 850 other judges, 30,000 employees, and a budget of close to $6 billion, is itself a complex bureaucracy, and it is under the chief justice’s ultimate supervision.
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The chief justice also presides over the Judicial Conference of the United States, composed of the chief judges of each of the thirteen federal circuits plus an experienced district judge from each circuit, and the chief judge of the federal Court of International Trade. The Judicial Conference, which meets at the Supreme Court twice yearly, is a direct descendant of the Conference of Senior Circuit Judges, which Chief Justice Taft persuaded Congress to authorize. Its original purpose was to advise the chief justice “as to any matters in respect of which the administration of justice in the courts of the United States may be improved.”
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The Judicial Conference’s mission today is a good deal broader. Much of its work is done in committees that propose the rules that govern important aspects of federal court jurisdiction and procedure. The twenty-two Judicial Conference committees have some 250 members, lawyers and judges who consider it an honor to be asked by the chief justice to serve. The conference itself communicates often with Congress on such matters as the need for additional judgeships or an increase in judicial pay. It comments as well on pending legislation that has a potential impact on the judiciary. In this capacity, both the Judicial Conference and the chief justice function as something close to lobbyists, seeking to achieve or prevent specific policy outcomes.
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For example, in 1991 the conference opposed legislation that was then pending to permit victims of gender-motivated violence to go to federal court and sue their attackers for damages. The chief justice himself, in his 1991 year-end report, criticized the bill for creating a “new private right of action so sweeping, that the legislation would involve the federal courts in a whole host of domestic relations disputes.” Three years later, in somewhat modified form, the bill was enacted as the Violence Against Women Act. In 2000 the chief justice wrote a majority opinion for the Court invalidating the law’s new damages remedy on the ground that Congress lacked the constitutional authority to enact it.
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The annual report “on the Federal Judiciary” was an innovation of Chief Justice Warren E. Burger. He began giving the reports in 1970, his first full year on the bench, and often delivered them in the form of a speech to the January meeting of the American Bar Association. The timing coincided roughly with the president’s State of the Union speech. Burger’s successor, William Rehnquist, dropped the personal appearance, instead issuing a written report every New Year’s Eve, a tradition that Chief Justice John Roberts has continued.
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Although most functions of the chief justice’s office are unseen by the public, the relatively recent tradition of the annual report serves to underscore the symbolic role the chief justice plays as the public embodiment of the third branch. It is the chief justice who hosts visiting judges of other constitutional courts. It is the chief justice who stands at the center of the quadrennial inaugural ceremony, administering the oath of office to the president. In January 2005, Chief Justice Rehnquist, who was critically ill with thyroid cancer and had not appeared in public for three months, left his sickbed briefly to perform this function at President George W. Bush’s inauguration for his second term. It was Rehnquist’s last public appearance outside the Court; he died six months later, at the age of eighty, in his thirty-third year as a justice.
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Although it is customary to refer to a given period in Supreme Court history by the name of the then-incumbent chief justice, not all seventeen chief justices have left an equal mark on public consciousness. The Vinson Court (Chief Justice Fred M. Vinson, 1946–53) did not make much of an impression, while the Warren Court that immediately succeeded it (1953–69) decidedly did. Even though Justice William J. Brennan Jr. was the engineer of a number of Warren Court landmarks, Chief Justice Warren’s name is firmly attached to the era during which a liberal majority of the Supreme Court harnessed the Constitution as an instrument of social change.
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6. Earl Warren was an active politician, and never a judge, before becoming Chief Justice in 1953. This poster is from early in his successful career in elective office in California. He later served three terms as the state’s governor.
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