July 19, 2005
"One Robe, Two Hats"--A Commentary by Prof. Judith Resnik and Theodore Ruger
(This essay was originally published in the July 17, 2005, edition of the New York Times.)
One Robe, Two Hats
By Judith Resnik, Arthur Liman Professor of Law at YLS, and Theodore Ruger, assistant professor at the University of Pennsylvania Law School
For now, the announcement by Chief Justice William Rehnquist that he will continue in office as long as his health permits is likely to dampen discussion of his replacement. Instead of speculating about his physical condition and playing the nominee name game, we should focus on the unique role played by the chief justice of the United States.
Many Americans are familiar with the chief justice's function as the presiding officer at the court's public sessions and at the private meetings where the justices make their decisions. When voting in the majority, he holds the power of selecting the opinion's author, thereby influencing both tone and substance.
To look only at the chief justice's role within the Supreme Court, however, is to ignore his authority over the federal judiciary and his influence in Congress. In essence, the chief justice is the chief executive officer of a bureaucracy of some 1,200 life-tenured judges, 850 more magistrate and bankruptcy judges, and a staff of 30,000. He is the chair of the policy-setting body - the Judicial Conference of the United States - that establishes the priorities for the federal judiciary, including overseeing its budget, now about $5.43 billion annually. The chief justice appoints the director of the Administrative Office of the United States Courts and, together, they select the judges who sit on judicial committees focused on topics from technology to international judicial relations.
What do these committees of the federal court system do? In 1922, Congress first authorized the eight senior circuit judges to report once a year to Congress on the "business of the federal courts." By midcentury, the group had grown in size, developed subcommittees and expanded its agenda, as it started advising Congress about which civil litigants ought to have access to the federal courts, and which should go to agencies or be sent to state courts.
Chief Justice Rehnquist has broadened the mandate yet further, creating new committees like the one that formulated the Judicial Conference's first "long range plan," which was approved in 1995. Among that plan's more than 90 recommendations is a request that Congress have a presumption against creating any new federal rights to be enforced through the federal courts. The conference also has taken positions on various pending bills. In the early 1990's, it initially opposed creating a new civil rights action for victims of gender-motivated violence proposed as part of legislation on violence against women - a position from which the conference subsequently retreated. But in 2000, six years after Congress had enacted the Violence Against Women Act, the chief justice wrote the majority opinion that ruled, 5 to 4, that Congress had exceeded its power in giving that new right.
The chief justice also picks the judges who serve on federal tribunals like the Alien Terrorist Removal Court (with the power to permit deportation of legal aliens suspected of aiding terrorism) and the Judicial Panel on Multidistrict Litigation (with authority to consolidate cases pending across the federal system involving topics from toxic torts to antitrust violations). He decided which judges served on a special division of the District of Columbia Circuit when, because it had the power to select independent counsels, that panel famously chose Kenneth Starr to investigate allegations against President Bill Clinton. And the chief justice selects the 11 judges who sit for seven-year terms on the Foreign Intelligence Surveillance Act Court, which since its creation in 1978 has approved over 10,000 government requests for surveillance warrants.
The chief also picks the 255 people who sit on the 24 committees of the judiciary, including those that make the rules for litigants. Whether a civil litigant, a prosecutor, a criminal defendant or a bankruptcy petitioner, litigants must comply with requirements described in federal rules, all crafted by committees whose members are selected by the chief.
The administrative role of the chief justice is a 20th-century invention, not a constitutional mandate. That role, and the additional stature that comes to the chief, are the product of some 100 ad hoc Congressional statutes and the ambitions of those who held the office. William Howard Taft, who became chief justice after serving as president, sought the expansion into policymaking. So did Earl Warren and then Warren Burger, who initiated the practice of giving annual "state of the judiciary" speeches. Chief Justice Rehnquist has gone further still, skillfully using the interaction of his administrative and adjudicative roles to shape the law of the land.
Congress and the public need to reconsider the wisdom of vesting so much responsibility in one person. Judges typically share power with other judges; judging on appellate courts is a collective enterprise, and trial judges are subject to appellate review. Moreover, both constitutional and common law traditions mandate openness in courts, with most decisions explained by reasons that are available for public scrutiny. The chief justice's administrative powers are subject to no such constraints.
Further, a judicial position that wields such power for so long is anomalous. Most constitutional democracies - Australia, Canada, France, Germany and Israel are examples - provide that justices on their constitutional courts sit for fixed terms or have mandatory retirement ages, thereby ensuring turnover, reducing incentives for strategic retirements and disconnecting judicial tenure from the fortunes of parties in power.
One way to diminish the power of the chief justice would be to separate the job of administration from that of adjudication, to try to insulate one from the other. But short of statutory changes, when the time comes to select a new chief justice, both the president as the nominator and the Senate that holds the power of confirmation ought to understand themselves as having a special obligation to the nation. Too much power is at stake for the position of chief justice to change hands without intensive inquiry into how a proposed nominee would plan to use both the authority to adjudicate and the ability to set the agenda for the nation's most visible and powerful judicial system.
Judith Resnik and Theodore Ruger are law professors at, respectively, Yale and the University of Pennsylvania.