The decisional significance of the Chief Justice.

Author:Cross, Frank B.
Position::2005-2006 Symposium: The Chief Justice and the Institutional Judiciary
 
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The office of the Chief Justice of the United States has received considerable renown but has been the subject of relatively little research. It is common to refer to the Chief as primus inter pares, but little attention has been paid to the relative significance of the primus as opposed to the pares. The office of the Chief Justice has been considered "second in national authority and prestige only to the president," (1) and is said to have "sweeping, if usually unstated, powers and significance." (2) Yet the Chief Justice has relatively little actual authority over the Associate Justices who serve contemporaneously, and the "fact that a chief justice must work his will with eight independent souls not chosen by him is a formidable barrier to his success." (3) Justice Frankfurter described the Supreme Court as an "institution in which every man is his own sovereign." (4) More colorfully, then--Associate Justice Rehnquist referred to Associate Justices as being "as independent as hogs on ice." (5) Thus, the actual influence of the Chief Justice on the Court may be disputed and may vary over time depending on the particular composition of the bench and the personality and inclinations of the individual Chief Justice.

The recent sad death of Chief Justice William Rehnquist has prompted tributes to his influence on the Court as Chief Justice. Mark Tushnet, the prominent liberal constitutional law professor, declared that Chief Justice Rehnquist and Chief Justice Earl Warren were the twentieth century's two great Chief Justices, as "[b]oth presided over courts that changed the law in a very dramatic way." (6) Professor A.E. Dick Howard suggested that "[w]e will look back on the Rehnquist court as one of the smoothest in the court's history." (7) Linda Greenhouse of the New York Times declared that Justice Rehnquist's tenure as Chief was "one of the most consequential," during which he "managed to translate many of his long-held views into binding national precedent." (8) According to the Washington Post, judicial restraint will be the Rehnquist Court's legacy, and Chief Justice Rehnquist's personal "considerable achievement" was his "effectiveness as chief." (9) Taking a slightly different perspective, however, Greenhouse suggested that the Rehnquist Court's legacy was the growth of the Supreme Court's own power. (10) Some disagreed with claims about Justice Rehnquist's influence, suggesting that "during some of the most heated battles, rather than an influential chief rallying the court, Rehnquist was the court's missing man, seeming to watch from the sidelines." (11) Thus, the impact of our most recent Chief Justice appears still open to question.

A considerable amount of historical evidence, including that drawn from judicial biographies, has provided critical information about the role and responsibilities of the Chief Justice, as well as about the influence of individual Chiefs over time. Like all anecdotal evidence, however, its reliability is uncertain. Such evidence can mislead by failing to uncover systematic trends or by relying on selective and unrepresentative stories. More rigorous quantitative empirical research on the role of the Chief Justice has been relatively sparse, although what does exist has provided some important insights.

This Article provides some additional empirical evidence on the effects of the Chief on the Court's deliberations, as well as the effects of elevation to the position on the Chief himself. We investigate whether decision-making trends on the Supreme Court shifted when Justice Rehnquist replaced Chief Justice Warren Burger. In particular, we consider changes in ideological trends in Court outcomes, cohesion among the Justices, and the Court's docket. In addition, we evaluate the extent to which Justice Rehnquist altered his own behavior following his elevation to Chief Justice in 1986.

  1. THE POWER OF THE CHIEF JUSTICE: EXISTING EVIDENCE

    Some existing research addresses the role and influence of the Chief Justice. Various analyses have considered the sources of the Chief's institutional powers and the potential influence these powers enable the Chief to exercise over his fellow Justices. (12) These analyses typically look to anecdotal examples in support of their claims; this research is addressed in Part A. While relatively little rigorous quantitative research has addressed the role of the Chief Justice, Part B reviews the research that does exist.

    1. Institutional Powers

      The Chief Justice may cast only one vote of nine in individual cases, the same as the other members of the Court. Nevertheless, the Chief does enjoy certain institutional powers that might be used to steer the Court in a particular direction. The Chief Justice serves as the Court's titular leader, as well as its actual leader in important respects. For example, she presides over conference deliberations and, when in the majority, assigns the opinion. The Chief Justice is also given several administrative powers that other Justices do not possess, and these might be implemented in a fashion that would give the Chief some influence over the Court as a whole. This Part examines some of those influences and how they might create some power to affect case outcomes.

      First, the Chief presides over oral argument and the subsequent conference at which the Justices vote on case outcomes. This enables her to speak first and provides her with the option to vote last on con tested cases. (13) The authority to speak first conveys an agenda-setting power that may be quite important because it enables the Chief to "direct discussion and frame alternatives." (14) Indeed, Chief Justice Rehnquist regarded the ability to speak first and structure the legal arguments as a key "advantage" of his position. (15) He also stressed that "what the conference shapes up like is pretty much what the chief justice makes it." (16) Jefferson Powell suggested that Chief Justice Rehnquist took advantage of this authority and "shifted the center of the discussion." (17)

      Occasionally, the Chief Justice may be able to take advantage of the Condorcet paradox to manipulate the outcome. (18) This paradox, amplified in Arrow's famous Theorem, involves nontransitive preferences. (19) A majority may prefer option A to B, option B to C, but option C to A. In this case, the resolution of the decision is entirely dependent on the order in which the dichotomous options are considered, thus providing the agenda-setter with considerable power over outcomes. The probability that such a set of manipulable preferences exists in a given case is not high, (20) however, and even the low probability is eliminated when preferences are "single-peaked," such as when they are ideologically driven. (21) Yet the Chief may also be able to take advantage of characteristics of the Court beyond the existence of any intransitive preferences. By controlling the conference, for example, the Chief may be able to pick the most strategic time to call a vote, such as when a swing vote appears to be leaning in the desired direction. Furthermore, like any chairperson, the Chief can exercise some control over the content of the discussion at the conference. Some Chiefs have used this control to their advantage: Chief Justice Hughes, for example, was known for dominating conference deliberations. (22)

      Policymakers' ability to manipulate outcomes through agenda-setting or issue-structuring is known as heresthetics, a word William Riker coined and defined as the ability of a "prospective loser to rearrange politics to his or her advantage." (23) Riker wrote extensively on such strategic actions, illustrated by historical examples of strategies used by politicians to influence policy outcomes. (24) A Chief Justice may similarly use this power by "constructing choice situations in order to manipulate outcomes--most notably, by adding alternatives, controlling the agenda, and voting in a sophisticated fashion." (25) One study indicates that the nature of the sequential voting at conference enables strategic behavior to influence outcomes and that the Chief Justice has engaged in such behavior to a statistically significant degree. (26) The Chief may also have other tools at her disposal to shape the Court's decision making. For example, in Brown v. Board of Education, (27) Chief Justice Warren strategically used his authority to separate the merits from the remedy in order to secure a unanimous opinion. (28)

      The Chiefs functional heresthetic authority at conference may be limited, however, at least in modern times. If all the Justices have made up their minds about the case prior to the conference deliberations, they may not be subject to much strategic manipulation. In contemporary conferences at the Court, there is little "give and take" among the Justices, and minds appear to be already made up. (29) Justice Scalia once declared that the conference was less an interchange than it was a statement of the independent views of each individual Justice. (30) Empirical studies of voting fluidity on the Court have not specifically addressed the effect of the conference but have found relatively little change in the votes of the Justices at various stages of the decision-making process. Segal and Spaeth find that strong fluidity--where Justices switch their votes over the course of the decision-making process--rarely occurs, and "when it does it disproportionately happens because most of the justices switch their votes to avoid a decision on the merits of the controversy." (31)

      Moreover, evidence supporting a strong association between the individual Justices' ideologies and their voting behavior calls into question the extent to which votes may be influenced at conference or otherwise. Where the Justices' votes are essentially predetermined by their ideological and policy preferences, little room exists for other factors--including the potential influence of the Chief Justice--to shape their decisions....

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