Responding to a democratic deficit: limiting the powers and the term of the Chief Justice of the United States.

• Author: Resnik, Judith
• Position: 2005-2006 Symposium: The Chief Justice and the Institutional Judiciary

This essay questions the wisdom and the constitutionality of the packet of powers now held by the Chief Justice of the United States. (1) Many of the current attributes of the position are relatively recent additions, generated during the twentieth century through the interaction of a sequence of congressional decisions and the leadership of Chief Justices William Howard Taft, Earl Warren, Warren Burger, and William Rehnquist. These jurists responded to new demands as national law grew in importance in the American polity, and they introduced new ideas that gave the federal judiciary the capacity to function as a programmatic, agenda-setting agency.

The reconfiguring of judicial power and structure within the federal system took place as, more generally, democratic mandates were reinterpreted to insist both that women and men of all colors had rights enforceable by courts and that the judiciary ought to include individuals diverse enough to capture an expanding class of litigants. Further, as concerns emerged about how, through popular electoral processes, individuals could entrench their authority for unduly long periods of time, American democracy revisited its institutions of electoral politics in the hopes (not yet well realized) of imposing constraints on the power of elected officials to entrench their own or their parties' power.

It is the interaction among these factors--the developing democratic principles, the long-held commitments to separation of powers and independent adjudication, and the new range of tasks accruing to the Chief Justice--that makes troubling the range of powers now possessed by the chief justiceship. One individual can serve for decades as a life-tenured administrator-adjudicator. With such tenure in office, one person has a unique opportunity to forward positions through two channels: by building a body of doctrine in case law and by building a set of policies in administrative directives.

When an individual is asked to be instrumental on behalf of the billion-dollar agency called "The Federal Courts" (with some two thousand judges, thirty thousand in staff and hundreds of facilities) and also to be successful jurisprudentially as a disinterested adjudicator, one role cannot help but bleed into the other. Each role amplifies the power of distracts from, and imposes costs on the other. Such conflation undermines democratic principles and the legitimacy of adjudication by giving the few individuals who hold the chief justiceship a disproportionate impact on American law.

The history of the developments of the twentieth century makes plain the plasticity of the packet of activities associated with the chief justiceship. Because the powers are artifacts of custom and statute rather than the Constitution, Congress as well as the Chief Justice can and should revisit these powers to revise the charter of that role.

TABLE OF CONTENTS I. RARE POWERS, UNDEREXAMINED II. AN ODD CONFIGURATION OF AUTHORITY A. Running the Court B. Running the Federal Judicial System, Itself Transformed 1. A New Federal Bureaucracy 2. Policymaking Through the Judicial Conference 3. Addressing the Nation 4. Lobbying the Congress 5. Appointing Judges to Special Courts and Committees C. Additional and Peculiar Powers: From the Smithsonian to Garnishment III. THE ANOMALY OF LIFE-TENURED MULTI-TASKING A. Mixing Roles B. Undue Accumulations of Power C. Representation Undermining Disinterest IV. A CREATURE OF CONGRESS AND CUSTOMS, NOT THE CONSTITUTION A. Constitutional Opportunities B. Statutory Innovations and Occasions for Self-Restraint Appendix A: Tenure of Chief Justices of the United States, of Directors of the Administrative Office of the U.S. Courts, and of Directors of the Federal Judicial Center Appendix B: Statutory Duties of the Chief Justice of the United States Appendix C: Tenure and Methods of Selection of State Chief Justices I. RARE POWERS, UNDEREXAMINED

Chief justiceships turn over infrequently in the United States. The new Chief Justice is only the seventeenth person since the founding of the United States to hold that position. (2) Academic conferences on the office of Chief Justice are similarly rare. The one predecessor to this Symposium, which was held in November of 2005 after the Senate confirmed Chief Justice John Roberts, occurred in 1982 when the University of Virginia convened a roundtable discussion while Warren Burger's chief justiceship was in full swing. (3) More frequent conversations are in order in light of substantive changes in the portfolio of the Chief Justice, in the function of courts, and in democratic aspirations for adjudication.

This contribution is predicated on four points. Our first is to analyze the range of activities now undertaken by the Chief Justice. The content of the role of Chief Justice stems not from the Constitution (which mentions the term only once, when discussing who presides in the event of an impeachment trial of the President) (4) but from dozens of statutes enacted in an ad hoc fashion over many decades, from customs, and from the vision, decisions, and ambitions of those who have held the office of the Chief Justice. (5)

Many facets of today's chief justiceship are relatively new and not well known. In earlier eras, the Court relied on long oral arguments rather than briefs; the Chief Justice did not--as happens today--cut advocates off mid-sentence at the end of thirty minutes. (6) Moreover, when defending the judiciary from attack, Chief Justice John Marshall resorted to a nom de plume; (7) today, the Chief Justice makes such arguments in an annual year-end report and in remarks before public forums such as the American Bar Association and the American Law Institute. (8) The contemporary custom is that, when in the majority, the Chief Justice has the power to assign which Justice will write the Court's opinion, (9) with a circulation of drafts following thereafter. In contrast, Chief Justice Marshall appears to have written most of "the Court's" decisions, (10) and the other Justices may or may not have seen the texts that are now read as constituting their judgments. (11)

These aspects of the chief justiceship stem from the Chief's service as the chief executive officer (CEO) of the Supreme Court. Another set of tasks derives from service as the leader of the federal judiciary more generally. One hundred years ago, that job was much smaller. The federal courts themselves had both fewer judges and a smaller aegis; some one hundred federal judges, scattered across the nation, generally relied on the procedural rules of the different states in which they sat and looked to the Department of Justice as their spokesperson in Congress to present the judiciary's needs for staff and facilities.

Today, some two thousand judges populate the federal courts and share a set of national procedural rules that link their daily practices. These judges are supported by their own Administrative Office, 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. (12) In addition to dealing with more than three hundred forty thousand civil and criminal filings, (13) about sixty thousand appeals, (14) as well as approximately a million and a half bankruptcy petitions annually, (15) resulting in thousands of decisions by district, magistrate, and bankruptcy judges, (16) the federal judiciary has also become an educational institution (teaching judges) and a policy-making body (advising Congress).

The development of a greater institutional presence for the federal judiciary has resulted in a larger set of powers accruing to the Chief Justice. The expansion of the federal courts is tied to the growth of a national lawmaking regime in which Congress played a pivotal role--crafting legal regimes that placed demands on the federal courts. Several Chief Justices--most notably William Howard Taft, Earl Warren, Warren Burger, and William Rehnquist--deserve significant credit for carving out new authority, for proposing and obtaining funds for new institutional structures, and for successfully persuading the other branches to support their visions. (17) Most recently, under the guidance of Chief Justices Burger and Rehnquist, the federal judiciary has worked out an integrated programmatic agenda, advancing positions in Congress about the allocation of power between the state and federal systems, between life-tenured and non-life-tenured federal judges, and about rights of access to courts. These administrative proposals reflect the commitments of those Chief Justices to a limited role for federal constitutional, statutory, and common law rights--views they also espoused in judgments of the Supreme Courts that they led.

Our second point requires a shift in focus from the federal judiciary's internal development to the revamping of other government practices and constitutional commitments. The thickening ranks within the judiciary are paralleled in the other branches, as new agencies, congressional committees, and executive departments have come into being. In all branches, the elaboration of bureaucratic structures has been accompanied by a concomitant delegation of tasks to staff. In addition, new roles and expectations for adjudication have emerged. From governments of emperors and kings to republican city-state burghers, adjudication has long been an important part of the exercise of political authority. (18) But until recently, many of those governed had few juridical rights and were not permitted to be litigants, lawyers, or judges. Further, governments were not obliged to disclose their own activities and could not often be held to their own promises. Judges served at the pleasure of the rulers who empowered them.

Over centuries, democratic countries came to appreciate the need for judicial independence, translated as a requirement that jurists have...