This issue of the University of Pennsylvania Law Review takes as its subject one of the most important, and least studied, major offices in American government--the Chief Justice of the United States. It is a fit time to engage in such an inquiry: last summer's passing of Chief Justice William H. Rehnquist, and the subsequent confirmation of John G. Roberts to fill his seat, focused rare attention on the particular features and powers of the office. The role that Chief Justice Roberts now occupies is vast in terms of public stature, importance to the workings of the Supreme Court, and broad influence over the federal judiciary and federal law generally.
The high status and generous authority of the office were not always in place. Felix Frankfurter, in a biographical speech on a number of Chief Justices delivered a half-century ago, commented on the curious career path of the nation's first Chief Justice: John Jay. (1) Jay resigned the office in 1794 to become governor of New York. (2) By Frankfurter's time such a decision was virtually unthinkable, so much so that he declared that "only a madman, a certified madman, would resign the chief justiceship to become governor." (3) Frankfurter meant no disrespect to the governorship of New York, (4) but instead based his opinion on the significant increase in the prestige and power of the Chief Justice of the United States that had taken place over the preceding 150 years. Frankfurter noted the remarkable chief justiceship of John Marshall as one foundation of the office's increased status, but also described more recent changes that had occurred in his lifetime, during the early twentieth century. (5) By the time of Frankfurter's assessment at mid-century, the office of Chief Justice had come to possess significant centralized authority over both the Supreme Court and the broader federal judiciary. As Judith Resnik and Lane Dilg detail in their comprehensive account of this issue, today the Chief Justice not only chairs the Supreme Court, but also "serv[es] as the leader of the federal judiciary," an entity comprised of "some two thousand judges," as well as "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." (6)
The scope and structure of the Article III judiciary, and the office of Chief Justice at its head, could hardly have been foreseen by the framing generation. The Constitution's grant of judicial power is famously unspecified--Article III speaks only of "a supreme Court, and ... such inferior Courts as the Congress may from time to time ordain and establish," and nowhere mentions the chief justiceship. (7) That office appears only once in the Constitution's text--in Article I's description of the impeachment process for the President. (8) The first men to hold the post were commissioned as the "Chief Justice of the Supreme Court of the United States," (9) a title that aptly described a leadership role that was important, but largely circumscribed within the Court itself. Instead of textual specificity or original intent, the growth of the modern chief justiceship and the federal judiciary generally is a product of episodic statutory and customary development. By the late nineteenth century the statutory title had changed to be "Chief Justice of the United States," (10) although the power of the office was still largely centered within the Court itself. (11) It was for the next generation to expand the breadth of the office fundamentally, a change which gathered momentum throughout the twentieth century and continues today.
There is now little doubt of the Chief Justice's influence both within the Court and beyond, in numerous roles relating to the broader federal...