The internal powers of the Chief Justice: the nineteenth-century legacy.

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

INTRODUCTION

The literature on the role of the Chief Justice of the United States has been dominated by two stereotypes. One, perpetuated by Chief Justices themselves and generally endorsed by other Justices, is that the Chief Justice occupies the role of "first among equals," meaning that the powers of the Chief are largely formal, such as personifying the Court as an institution, as opposed to substantive, such as exercising disproportionate influence on colleagues. The phrase "among equals" in the stereotype is designed to emphasize the fact that nine Justices participate in the Court's decisions, that each of their votes is given equal weight, and that the central job tasks of the Chief--hearing arguments, deciding cases, writing opinions--are no different from those of the other Justices. (1)

The other stereotype, which has emerged primarily from social science literature, is that the Chief Justice has special opportunities to exercise "leadership" on the Court. This stereotype is connected to a theory of collective decision making in small groups. (2) Although the Supreme Court is surely a unique small group--its decisions have very great authority and typically need to be given public legal justifications that are scrutinized by specialist commentators--it nonetheless resembles many other small groups in reaching its decisions collectively, through a deliberative process, and in following an established procedure, with formalized elements that facilitate that process. Moreover, the Chief Justice is, on most occasions, the "task leader" for the group's collective decision making (3): Chiefs set the agenda for the argument and discussion of cases and preside over the deliberations that lead to the rendering of a decision. In addition, Chiefs often control the assignment of opinions accompanying the Justices' dispositions of cases. This "task leadership" can be seen as equivalent to that of the chair of a committee.

Some social science scholarship has suggested that the "task leadership" functions of the Chief Justice also create opportunities for substantive leadership. (4) Two functions have been singled out. First, in the hands of strategically minded Chiefs, the "task leadership" function of scheduling oral arguments and subsequent conference discussions can serve as a means of affecting the deliberative process for high-profile cases. Second, the "task leadership" function enables Chiefs, when they are part of the majority for a particular case, to strategically assign the opinion in that case to themselves or another member of the majority in accordance with substantive agendas.

The chief justiceship, in sum, brings with it a special seniority. The Chief personifies the Court in popular parlance. He also is, for better or worse, the Court's chief presiding officer. When social scientists speak of the Chief's "task leadership," they have these special seniority functions in mind. But there has been remarkably little discussion of the origins of these functions. Why did the agenda-setting and assignment powers devolve upon the chief justiceship? What is there about the office of Chief Justice that gives the occupant of that position powers which transcend two long-established customs of the Court, that seniority yields privileges and that seniority is a function exclusively of a Justice's length of service? How, in short, did the special seniority of the Chief Justice come into being?

This Article explores these questions. Part I considers why, as a historical matter, the chief justiceship was treated as a position distinct from that of the other justiceships, particularly since there was no discussion in the debates ratifying the Constitution of the Chief Justice's office or powers, and only one constitutional provision singles out the chief justiceship, declaring that the Chief Justice will preside at presidential impeachment trials. (5) Part II explores the origins of the Chief's powers of controlling the Court's internal deliberations and of assigning opinions in cases, concluding, first, that neither one of those powers was historically inevitable; second, that the internal exercise of both powers has changed over the course of the Court's history; and third, and perhaps most significantly, that the Court's internal protocols governing its deliberative process have also changed. Finally, Part III asks to what extent the nineteenth-century legacy of the Chief Justice's internal powers has served to burden, or benefit, some twentieth- and twenty-first-century Chief Justices, and whether, notwithstanding the historical contingency and changing exercise of those powers, they can now be said to be dimensions of the office of Chief Justice of the United States that are cast in stone.

1. THE ORIGINS OF THE CHIEF JUSTICE'S SPECIAL SENIORITY

   A. Early Assumptions About the Chief Justiceship

   Although the Constitution is virtually silent about the offices of the Chief Justice and the Associate Justices of the Supreme Court, the provision in Article I giving the Chief Justice power to preside over presidential impeachment trials can been seen as conveying some expectations about the position. One was that a member of the federal judiciary would be an appropriate person to direct the trial of a President of the United States. Not only was presiding over trials a core function of the office of judge, the judicial branch of the newly created federal government was expected to be independent of the other branches.

   Another expectation was that the Chief Justice, by virtue of his position, was the nation's primary legal authority. It was necessary, in a trial determining whether the nation's chief executive should remain in office, to have a person of nearly comparable status presiding. The Chief Justice was the personification of the Court's authority, more so than any of the Associate Justices. He was, as it were, the Court's commanding officer, whose status outranked that of his judicial colleagues.

   The idea that collegial courts (ones composed of multiple judges who made decisions collectively) would have "presiding" or "chief" judges had long been established in England at the time of the American Revolution, and was very likely imported into American legal systems as a matter of course. Collegial courts required some member to be responsible for organizing their proceedings and facilitating their deliberations; a chief judge performed that role. With the assumption, in Anglo-American jurisprudence, that collegial courts would have presiding officers came the assumption that those officers would, by virtue of their organizational powers, hold a more senior status than their associates.

   One can see evidence of the special seniority of the Chief Justice from America's earliest years. During the tenure of John Jay (1789-1795), the Court was composed of five or (after 1790) six Justices. It decided comparatively few cases, and in most of those cases the Justices delivered and published opinions "seriatim," or separately. The order in which the seriatim opinions were published (and apparently delivered) was strictly by reverse seniority, with the most junior Justice (James Iredell or William Paterson) delivering his opinion first and Chief Justice Jay delivering his last. In many instances Jay's opinion was followed by a brief paragraph, with the heading "By the Court," which announced the precise disposition of the case. Occasionally an opinion would only consist of this "By the Court" paragraph; there would be no accompanying opinions. In those instances, the Chief Justice would deliver the "By the Court" opinion. (6) On one occasion, after Jay had resigned from the Court and had been temporarily succeeded by John Rutledge, (7) Rutledge delivered a "By the Court" opinion in a case in which it was clear that he had not participated in the decision. (8)

   During the tenure of Oliver Ellsworth (1796-1800) the Justices issued seriatim opinions less frequently. By this point practices had developed which clearly conveyed the special seniority of the Chief Justice. On almost every occasion in which Ellsworth was present when an opinion of the Court was announced, he was recorded as having delivered that opinion. When Ellsworth was not present (which was comparatively often, because he was ill for some of his tenure and was absent for nearly a year on a diplomatic mission), or did not participate in the decision, the Court's reporter sometimes noted that in the Chief Justice's absence another Justice was delivering the Court's opinion. (9) The assignment of that Justice seems to have been done on the basis of seniority.

   In addition, seriatim opinions on the Ellsworth Court tended to occur only in cases in which Ellsworth had not been present for the deliberations. (10) By the close of Ellsworth's tenure, the practice of substituting opinions of the Court for seriatim opinions was sufficiently established (11)--and sufficiently associated with the Chief Justice--that when the Justices reverted to seriatim opinions in the 1800 case of Bas v. Tingy, for which Ellsworth was absent, Justice Samuel Chase commented on that fact. (12)

   In the early Marshall Court, the practice of the Chief Justice delivering the opinion of the Court, even when he had not necessarily written that opinion, continued. In a survey of Marshall Court opinions from 1801 to 1810, Herbert Johnson found that in every instance from 1801 to 1805 for which an opinion of the Court was announced, the reporter indicated that the Chief Justice had delivered the opinion or that, if the Chief Justice had not been present, the opinion had been delivered by the most senior Associate Justice. After 1805, this practice was occasionally modified, but quite sparingly. (13) Johnson's findings, and some additional evidence, led him to conclude that the Justice who delivered the opinion in this period of the Marshall Court was not necessarily the author of the...