This Essay explores an incongruity in the allocation and exercise of two different kinds of judicial discretion held by the Chief Justice of the United States. The paradigmatic type of discretionary authority that Article III judges (including the Chief Justice) possess is expressed through the mode of adjudication, and as such is constrained in important ways by procedural forms that accompany that kind of official action. Judges are constrained, to a greater or lesser extent, by formal "law," but their discretion is additionally limited by the collective structures of the federal judiciary and also by the normative expectation that judges give express reasons for their decisions. In this sense the appointment of an Article III judge can be regarded as a form of license to exercise bureaucratic discretion for a lifetime, but to do so under certain well-defined rules. We tell judges to follow "the law," to be sure, but we don't rest our faith entirely on the law's uncertain formal constraints. Instead, judges exercise power collectively, are limited to particular cases and controversies, and are obliged to give reasons for each important decision that they make.
So it is for most federal judges, including the Chief Justice in his primary role of deciding cases on the United States Supreme Court. Within the Court's core adjudicative function, the Chief's status as "prima inter pares"--first among equals--is a well-known and generally apt description of a type of special status that is highly visible, but also limited in important respects. The Chief Justice's adjudicative power is structured and channeled in ways very much like the other eight Justices on the Court, and, in a more general sense, is much like the authority of any judge on a multimember appellate tribunal. The Chief Justice exercises independent discretion in a formal sense when he votes on cases, but is functionally dependent on the agreement of at least half of his peers to achieve his preferred result or rationale. This remains the case when he exercises the special privileges of his office, such as the opinion assignment power.
The above generally describes the Chief Justice's adjudicative role for the entire history of the office--even John Marshall's prominent influence depended on the compliance of half or more of his colleagues during his long tenure. (1) But in the past century, the Chief Justice's basic set of powers has expanded to include sweeping authority beyond the particular cases and controversies before the Court. Through gradual statutory and customary accretion, and spurred by innovative and acquisitive Chief Justices like William Howard Taft and William H. Rehnquist, the office has come to exercise a range of bureaucratic powers that extend far beyond the Supreme Court's walls, and influence the federal judiciary as a whole. Though the Constitution confers no special powers on the office--save that of presiding at presidential impeachment trials (2)--the Chief Justice currently presides over the important Judicial Conference, which helps set judicial policy, appoints key managerial personnel in the federal courts, and selects the judges who sit on various specialized federal courts. (3) The exercise of these and other broad powers, in turn, has potential to meaningfully influence the substantive outcomes of at least some federal court proceedings.
At a facial level, these two kinds of authority held by the Chief Justice appear quite different. When discharging the office's extramural, administrative duties, the Chief Justice is doing something quite different than the specific case resolution that is paradigmatic of an Article III judge's authority. Such power is not constrained by anything that looks like formal "law"--such as stare decisis, textual commands, or the like--and we would not expect it to be, for the functional power is not "judicial" in nature, but is more properly thought of as "executive" or "bureaucratic." But neither is such power cabined by the other procedural forms that accompany and channel adjudicative discretion, such as the norm of collective decision making and the expectation that decisions will be justified by stated reasons. The Chief Justice is empowered to exercise many of the office's most important powers--handpicking the judges who sit on the crucial Foreign Intelligence Surveillance Act (FISA) court, (4) for instance--without any need for collegial consensus, and without any stated reasons for so doing.
My central claim here is that this stark dichotomy in procedural form and normative constraint is inapt. The seemingly different kinds of power that the Chief Justice exercises in his adjudicative and extrajudicial roles are in fact quite similar in their most crucial aspect--both entail the application of official discretion to a discrete problem, with a particular set of alternative choices from which the official may choose. Both, in turn, raise the problematic specter of individualistic discretion in the hands of a single unelected official. To be sure, adjudicative discretion is constrained by formal "law" to an extent, but only to an extent, and judges, particularly those on the Supreme Court, retain significant ability to shape legal rules to choose among alternative results and rationales. (5) But we do not expect formal law to do all the work when it comes to limiting judicial discretion to its basic form; individual judges are also constrained by a set of complementary practices--such as collective decision making and explicit reason giving--that, although they accompany the legal process, are not the same as formal "law." These norms are pliable enough to serve useful purposes in limiting official discretion in other governmental contexts beyond adjudication. I argue here that these structures can be, and ought to be, applied to cabin the Chief Justice's special authority in areas where the office's discretion is currently unbounded.
My Essay advances this argument in three basic parts. Part I is a discussion of adjudication within Article III, with particular discussion of two extralegal norms--collective decision making and reason giving--that have come to accompany the exercise of legal discretion in the United States. I explain that both norms operate as constraining devices to limit individual judicial discretion, in addition to, and somewhat independent of, formal "law" itself. Because collectivity and reason giving are distinct from formal law, they are viable mechanisms applicable to other forms of official action outside the realm of adjudication. Part II explores the development of the Chief Justice's special powers, and explains how the office's authority developed without meaningful constraint from these presumptive Article III norms. Part III concludes with a discussion of how the adjudicative norms of collectivity and reason giving might be modified and applied to constrain various aspects of the Chief Justice's special authority.
CONSTRAINING DISCRETION WITH COLLECTIVITY AND REASON GIVING
The problem of constraining judicial discretion is a very old one, certainly predating the United States Constitution and evident in the early debates at the time of that document's ratification. The Framers made a distinction between ideal judges exercising only "judgment," and more lawless jurists applying their "will." (6) Much like modern politicians, leaders of the time cast contemporaneous court decisions they approved of as representative of the former type, and ones they disliked as products of judges' craven political "will." (7) Central to the legitimization of judging was the idea that judges based their decisions on, and were constrained by, a set of legal forms and practices that differed from the stuff of ordinary politics. Judges themselves were keenly aware of this dynamic, and in the vivid language of the time described official discretion unburdened by legal forms as "naked"--and thus dramatically different from the ordinary and appropriate exercise of judicial authority. (8)
Law itself was (and is) the obvious first candidate to cover over the nakedness of raw judicial discretion. In all its facets--adherence to text, fidelity to precedent, and embrace of deductive logic--the application of formal law purports to channel judicial power into a decisional field that, if not absolutely objective and mechanistic, is at least a dramatically narrowed set of plausible choices and rationales. But history has shown that the strong-form argument for law's formal constraint on judicial discretion is overstated. In light of the weaker constraint that is revealed, it is not surprising that other customary norms have come to accompany the exercise of judicial authority by Article III courts. The two most deeply rooted, which I will explore here, are the practices of collective decision making and of express reason giving. These norms serve to channel individualistic judicial discretion in ways similar to legal rules, and in certain settings are probably as important, or more important, than "law" itself in constraining judicial behavior.
Judges, although formally independent, are intertwined with other judges in vertical and horizontal institutional structures, and are also confined in a more abstract sense by the requirement of giving explicit reasons for their decisions. I will briefly discuss the development of these adjudicative norms in the following few pages, although both are sufficiently entrenched and accepted that it is unnecessary to describe them at great length. Crucial for the argument I make later in the Essay, though, is the idea that, although the norms of collectivity and reason giving have come to accompany adjudication, they are not uniquely or exclusively suited for that mode of governmental discretion alone. Instead they are available procedural forms to regularize other types of bureaucratic authority, including the...