The Rehnquist Court will become the Roberts Court, if the Senate accepts the nomination of John Roberts as chief justice.
How much that matters will ultimately depend on Roberts himself.
As chief justice of the U.S. Supreme Court, Roberts would hold powers that are both greater and lesser than many people may think. Though the title is exalted, the reality has sometimes frustrated the 16 men who have held the job since 1789.
“Anybody who comes to that position from off the court will be severely challenged in their efforts to mass the court in one direction,” said Bruce Murphy, a Supreme Court biographer and government professor at Lafayette College. “It’s going to be difficult … there are so many landmines for any chief justice.”
Adding to the complication is the fact that some of the biggest potential clout comes outside the high-profile world of oral arguments and deciding cases. The chief justice also sits atop a vast judicial bureaucracy, providing administrative power that rarely makes the history books.
It can, however, leave a lasting mark.
“Chief Justice Rehnquist was brilliant at enhancing that position, and Congress has played a major role in adding to the authority of the chief justice,” noted Judith Resnik, the Arthur Liman Professor of Law at Yale Law School. “In many respects, Rehnquist changed the job, so that its breadth is greater than it has ever been before.”
Resnik suggested that “the task for the Senate now is all the more important” because of these expanded administrative powers. The chief justice, she noted, oversees the Judicial Conference of the United States, which includes the roughly 1,200 life-tenured federal judges, 600 bankruptcy and magistrate judges and some 30,000 judiciary branch employees.
“While once the Judicial Conference was much more circumscribed,” Resnik added, in recent decades it has become increasing involved in agenda setting, long-range planning and proposing legislation.
The chief justice, moreover, fills key positions like the 11 slots on the secretive Foreign Intelligence Surveillance Act Court that oversees federal wiretap warrants. And, in his annual reports, Rehnquist took on the task of defending federal judges against congressional interference.
None of the chief justice’s powers are spelled out in the Constitution, which doesn’t even mention the title. The nation’s first chief justice, John Jay, was so unimpressed with the position that he quit in order to become governor of New York.
Since then, the responsibilities have accumulated to include the strictly symbolic and the highly functional. It’s the chief justice who presides over oral arguments, swears in the president every four years and administers the oath for new attorneys admitted to Supreme Court practice.
The chief justice also takes home a bit more money, currently earning $208,100 a year compared to the $199,200 earned by the Supreme Court’s associate justices. Some chiefs add their own flourishes, like the theatrical stripes that Rehnquist affixed to his black robes, and they set a tone for their colleagues.
“When the justices are badly polarized, a chief may be able to smooth the waters, but he is not likely to resolve the underlying conflict,” noted Thomas Keck, an assistant professor at Syracuse University’s Maxwell School of Citizenship and Public Affairs.
Substantively, it’s the chief justice who runs the weekly private meetings where the nine members of the court consider each case. The chief justice, if in the majority, gets to assign the job of writing the opinion.
Assigning the opinion is a crucial job, because it can shape how broad or narrow the court’s final decision becomes. Former Chief Justice William Burger, for instance, was reported in Bob Woodward’s book “The Brethren” to have deliberately avoided assigning opinions to liberal colleagues like William O. Douglas.
“The chief justice has unique power and influence as the nation’s highest-ranking judge,” People for the American Way President Ralph Neas said.
While basically accurate, Neas’ comments also ride atop a political motive. The liberal organization already had opposed Roberts’ nomination to replace Justice Sandra Day O’Connor, and along with its allies it now hopes to stoke that faltering opposition by citing the higher stakes.
More mundanely, chief justices can be crucial in making the judicial trains run on time. This is something Roberts learned directly while serving as a law clerk to Rehnquist, who helped cut the number of cases heard by the court from 166 in 1985 to 80 last year.
Still, chief justices only have one vote, and as Rehnquist’s own experience showed, that doesn’t always translate into steering the court in a certain direction.
“His vote counts the same as the other eight justices, so he’s certainly not able to impose his own will,” Keck said.