Hail, no: changing the Chief Justice.

• Author: Swaine, Edward T.
• Position: 2005-2006 Symposium: The Chief Justice and the Institutional Judiciary

Whatever his substantive accomplishments, the late William Rehnquist's tenure as Chief Justice of the United States reinforced that office's distinctive character. Prone to admonish advocates who addressed him merely as "Justice" Rehnquist, (1) he designed spiffy new robes for himself--inspired, apparently, by the character of the Lord Chancellor in Iolanthe (2)--that were on display during the impeachment trial of President Clinton. This reflected, however idiosyncratically, a widely shared understanding of the importance of the office and the glory of holding it. Life tenure is a key part of its appeal. William Howard Taft famously preferred being Chief Justice to being President, (3) and John Quincy Adams noted that while "the power of constructing the law is almost equivalent to the power of enacting it[, t]he office of Chief Justice of the Supreme Court is held for life, that of the President of the United States only for four, or at most for eight, years." (4)

The means by which Chief Justice Rehnquist's term began and ended also evidenced the singular nature of the job. His promotion to succeed Warren Burger was hard fought, but it also diverted attention from the nearly simultaneous appointment of Antonin Scalia, who was nominated to assume Rehnquist's just-vacated seat as Associate Justice--and who might otherwise have attracted closer scrutiny. Rehnquist's death this past summer also illustrated the peculiar character of promotion. John Roberts had already been nominated to Sandra Day O'Connor's seat as Associate Justice, but the nomination was withdrawn so that he could be renominated instead to succeed Rehnquist. This reinforced the disjunction between the two positions, and suggested that prior appointment to the Court would no more have resolved the question of appointment as Chief Justice than would prior appointment as White House Counsel.

Is this etched in stone? Rehnquist's robes, at once innovative and a throwback, hinted not. Gilbert and Sullivan's Lord Chancellor, who claimed to "embody the Law," inhabited an office that American Chief Justices have regarded enviously. (5) But the Lord Chancellor's powers have waxed and waned over time, and the House of Lords only recently thwarted a proposal to abolish the office entirely. (6) Traditionally, it was even possible for others--including a commoner or a committee--to be assigned some of the Lord Chancellor's duties instead. (7)

Just so for the office of the Chief Justice, where the appointment process is also a matter of tradition not immune from reconsideration. Although the office has always been treated as a separate lifetime appointment, subject to Senate confirmation, that does not seem to be required by the Constitution, and Congress might change things altogether. Picking Chief Justice Roberts's successor in a different way--from among the Justices, by seniority, or by vote of the Justices themselves, and to serve for a limited term--might be a modest step toward improving the Court's legitimacy. At the very least, a better understanding of the latitude in the appointment process may prompt a clearer evaluation of the present system's costs and benefits.

1. THE OFFICE AND ITS POWERS

   The U.S. Constitution only indirectly adverts to a Chief Justice. Article III provides simply that there will be "one supreme Court" and various "Judges" to populate both it and the lower courts. (8) Article I, however, mentions the Chief Justice as the person presiding when the Senate is trying a case of impeachment against the President. (9) That's it. Section 1 of the Judiciary Act of 1789 elaborated that "the supreme court of the United States shall consist of a chief justice and five associate justices." (10) One member of the House objected that the title "Chief Justice" was "a concomitant of royalty," but retreated when a colleague pointed out that the term was already employed in the Constitution. (11)

   The title--and the position--has since transcended its constitutional roots. By tradition, the Chief Justice presides over the Court's public proceedings, chairs the Justices' conferences, and assigns opinions in those cases in which she is in the majority. The Chief Justice also oversees the Court's administration and lobbies on the Court's behalf on matters involving its docket and jurisdiction. (12)

   But the position has also evolved to take on responsibilities beyond the Court. While the first Chief Justices were each commissioned as "Chief Justice of the Supreme Court of the United States," (13) Presidents and Chief Justices began to use broader terms like "Lord Chief Justice" (14) and "Chief Justice of the Union," (15) and Congress eventually endorsed their use of "Chief Justice of the United States." (16) The position's national responsibilities grew apace. At Chief Justice Taft's urging, Congress created the Judicial Conference of the United States, chaired by the Chief Justice, (17) and later created the subordinate Administrative Office of the United States Courts. (18) The Chief Justice has also been made responsible for assigning sitting and retired judges to serve assignments outside of their normal jurisdictions (19)--which Chief Justice Taft allegedly used to direct judges favoring Prohibition toward "wet" judicial districts, and Chief Justice Burger allegedly used to tilt the Foreign Intelligence Surveillance Court (20)--and the office has gradually accrued statutory, legislative, and public relations functions.

   The growth in the Chief Justice's powers has been controversial. The position's increasingly diverse responsibilities may, for example, distract from judging, raise accountability problems owing to life tenure, or endanger the Court's perceived independence from politics. (21) These missions also raise accountability concerns: government officials often accrete powers for their offices, but mission creep is surely more troubling when the powers vest in someone with lifetime tenure.

   The point for immediate purposes, however, is that Congress could radically alter this situation. Changing the Chief Justice's role in presidential impeachment would seem to require constitutional amendment, (22) but nothing else rises to that level. The non-adjudicative functions are of relatively recent vintage, and, if anything, are weakly contraindicated by the Framers' failure to adopt proposals that would have involved the Chief Justice in the legislative process. (23) The Chief Justice's responsibilities within the Court may seem worthier of constitutional protection, but the Constitution, recall, only mentions the Chief Justice in connection with the Senate, and has left Congress (and, at least in its absence, the Court) free to resolve the Chief Justice's more routine adjudicative role. There seems to be nothing that would prevent the other Justices, acting individually or collectively, from running the show--a point to bear in mind as we turn to the appointment process.

2. APPOINTING THE CHIEF JUSTICE

   Had the Chief Justice's modern responsibilities been anticipated at the nation's founding, they might have provoked greater deliberation about the appointment process. The records of the drafting and ratification of the Constitution are silent as to what the founding generation contemplated. To be sure, chief judges were scarcely foreign to them. Colonial and state judiciaries provided them with a wealth of experience--for example, half of the first Supreme Court had held an analogous office on their states' highest courts (24)--but it may be doubted whether these variegated schemes cohered or were mastered by any one of the Framers, (25) and whether they saw much likeness to the Supreme Court they were creating. (26)

   Three themes might have been apparent. One was that the chief justice was widely treated as a separate appointment, hierarchically superior to others of the same tribunal. (27) Second, the chief justice's role was often substantively and procedurally dissimilar to any that might have been contemplated in the U.S. Constitution--for example, because he participated in legislative councils, or served in more than one office at a time. (28) Third, colonial and state courts and their judges were generally subject to political control--only the number of judges, means of initial appointment, and tenure were fixed by state constitutions (29)--and details like the appointment of chief justices were often left unresolved. (30) The Constitution, likewise, guaranteed judges' tenure during "good Behaviour" and prevented reductions in salary, (31) but without inhibiting Congress from changing the Court's work or the number of Justices.

   Neither the colonies nor the states had many chances to address how anyone comparable to an Associate Justice might be promoted to become chief justice, (32) and the initial experience under the Constitution was a blur. (33) When President Washington appointed the first slate of Justices, he simply had to designate one, John Jay, as the Chief Justice. (34) When Jay resigned to assume the governorship of New York, Washington faced the first test of how to replace a Chief Justice. It was a debacle. He first selected former Justice John Rutledge, who had left previously to become a state court judge. Rutledge served briefly with a recess appointment before being rejected by the Senate following a vituperative political speech (against, of all things, the Jay Treaty) that gave rise to rumors that he was mentally unstable. (35) Washington then delayed nominating a replacement in order to gauge the interest of Patrick Henry, who failed to provide the President with a timely response. (36) With just weeks before the next sitting, and having lacked a properly confirmed, sitting Chief Justice for nearly two years, Washington nominated then-Associate Justice William Cushing. (37) The Senate confirmed Cushing the next day, but he resigned his commission one week afterward, on health and age grounds, after...