Significance: The chief justice leads the eight other justices, assigning the writing of opinions and often casting the deciding vote in split decisions.
Before the Supreme Court was instituted in 1789, Congress decreed that the Court would have five associate justices and a chief justice. The six justices were viewed as being essentially equal, although the chief justice had certain specific, additional duties. Accordingly, the chief justice was paid more than the associate justices, but the salary disparity was never substantial. In 1988 the chief justice received $115,000, just $5,000 more than the associate justices. The first person President George Washington appointed to the Court was John Jay of New York, who served from 1789 to 1795 as chief justice. The early court, which first met officially in 1790, dealt with an average of five cases a year during its first five years. This caseload was light and manageable compared with the more than two hundred cases a year handled by the Court in the twentieth century. Five associate justices and the chief justice were able to handle such a caseload easily.
The Constitution does not specify qualifications for the position of Supreme Court justice. Although justices articulate the most significant legal decisions made in the country, they need not be lawyers, although most of them are. The only requirement for a person to become a chief justice is that he or she be a citizen nominated by the president of the United States. This nomination must be confirmed by the Senate. Chief justices need not have served as associate justices, although usually they have. Some chief justices have been consummate legal scholars, but experience has proved that the best legal scholars do not necessarily make the best chief justices and the best chief justices are often not the best legal scholars. Justices, including the chief justice, are served by cadres of well-trained law clerks, many of whom have more specific knowledge of the law than the people for whom they work. The law clerks often research and write the first drafts of the justice's opinions.
Most Important Characteristics
The greatest responsibility of chief justices is leadership. They call the other justices into conference to discuss cases and are the first to speak. In doing so, they become the person best able to direct the course of the court's actions, although each justice acts independently and is not beholden to the chief justice. The individual justices must work autonomously. Disagreement over the interpretation of the Constitution and over individual decisions does not evoke charges of disloyalty and, ideally at least, does not invite retaliation. People appointed chief justice are generally selected because they can remain dispassionate and disinterested in matters before the Court. To function effectively, chief justices must deal with the other justices and their clerks diplomatically, in nonconfrontational ways. Their major functions are to clarify and persuade rather than to direct and confront. Ironically, although legal scholars often make excellent associate justices because they become deeply involved in the details of law and of the Constitution, those who have become the most effective chief justices are noted more for their administrative skills than for their legal scholarship. The office of chief justice has, through the years, been affected most significantly by the personalities of the justices themselves.
Aside from writing opinions, which is one of their major functions, chief justices have substantial power because they preside over the Court in oral arguments and in conference. In conference, a chief justice can channel discussions into important areas and can suggest alternatives. Chief justices also create the discuss list, or the list of cases to be considered for adjudication. They cannot act unilaterally to exclude petitions for hearings, but they substantially influence the decisions of their colleagues. The chief justices, with the assistance of legal clerks, draw up the discuss list, which gives them the greatest role in determining which cases come before the Court. The chief justice is also responsible for assigning to the associate justices the cases for which they will write opinions. Some chief justices have themselves written a huge number of opinions, and others delegate a great deal of this important work. The opinions chief justices and associates are required to write involve the legal analysis of extremely complex issues that, in recent times, have become increasingly technological in nature. The written opinions must be buttressed by a full discussion of legal precedents and by references to past cases and to legal protocol. Usually draft opinions are prepared by bright young assistants, usually newly graduated from law school and recently admitted to the bar. Many of them were editors of their universities’ law reviews. They research legal documents extensively to write opinions that they then pass on for revision, emendation, and review by the justices, including the chief justice. In the final analysis, however, the justices rewrite the opinions, putting them into their final form, which is the official form that enters the Court's records. The chief justice is also specifically designated as the person who will preside over impeachment hearings brought against a president of the United States. William H. Rehnquist served in this capacity during the impeachment hearings of President Bill Clinton early in 1999. The chief justice has various Court management duties, which include tasks such as administration of the Court's bureaucracy and preparation of budget estimates. He or she also chairs the Judicial Conference of the United States, composed of lower federal court judges. This conference meets and makes recommendations to Congress.
John Marshall's Model
Among the most important decisions of the early Court was Marbury v. Madison (1803), which, under the leadership of Chief Justice John Marshall, who served as chief justice for thirty-four years, scored a double victory and set important precedents. Outgoing President John Quincy Adams, under the Judiciary Act of 1801, attempted to pack the courts with Federalist jurists, among them William Marbury, who was to serve as a justice of the peace for the District of Columbia. Adams's term ended at midnight on March 3, 1801. Thomas Jefferson was inaugurated the next day, but the appointment papers for Marbury and several others were still on Adams's desk. James Madison, Jefferson's secretary of state, refused to receive these papers. When Marbury's promised appointment was held up, he took his case to the Court. President Adams had appointed Marshall to the Court as chief justice only weeks before. It was expected that Marshall would support Adams's efforts to pack the courts with “midnight judges,” as these last-minute appointments were called. If Marshall supported Marbury in this case, the judiciary would remain in the hands of the Federalists. In the end, however, newly elected Democratic-Republicans, who now controlled Congress, repealed the Judiciary Act of 1801 under which the judgeships Adams sought to fill in his last hours as president were created. With this repeal, Congress forbid the Court to convene for fourteen months, which meant that the legislative branch sought to control the judicial branch, clearly in violation of the separation of powers that the founding fathers envisioned. The Court did not meet during 1802, acceding to the congressional mandate. When it met in February, 1803, however, the case of Marbury v. Madison was on the docket. For this complicated case, Chief Justice Marshall wrote the opinion in two parts. In the first part, he found that Marbury had every right to the position he had been promised. He added, however, that the Court had no power to force Madison to deliver it. The Judiciary Act of 1789 gave that power to the Court, but in doing so, Marshall found, it was giving a power that, under the Constitution, it could not bestow. Congress had overstepped its authority, thereby failing to follow the mandates of the Constitution. It was the force of Marshall's leadership that resulted in bringing about a landmark decision that assured the separation of powers that has been a cornerstone of the political strength of the United States. Marbury v. Madison established for all time the concept of judicial review, which was perhaps the greatest single contribution of the Marshall Court. During Marshall's long tenure as chief justice, the size of the Court changed, being reduced in 1801 from six to five, then, in 1807, being increased to seven. (In 1869 it grew to nine justices.) Having an odd number of people on the court prevents split votes. With an odd number of justices, it is usually the chief justice who casts the deciding vote. Marshall, more than any other chief justice, imposed his beliefs on the other justices. A staunch Federalist, he nearly always found in favor of the national government in cases that involved actions against it. Late twentieth century chief justices have found it much more difficult to impose their wills on their colleagues, who accord them little deference.
The Importance of Opinion Assignment
Customarily, chief justices have assigned the writing of the Court's opinions at times when they are in the majority on the initial vote in conference, which is most of the time. In instances where this is not the case, the senior justice in the majority makes the assignment. The selection of the writer of an opinion will often determine whether the initial majority is retained and how large it will be. Chief justices who know their associate justices well will assign the writing of opinions to those who are most likely to achieve the ends they have in mind. Chief justices can also exercise their power by assigning the writing of opinions to themselves. Most chief justices assign the writing of opinions to those in their own ideological camps.
- A major resource for the study of chief justices is the ABC-Clio series on the courts of individual justices. Its coverage ranges from the first chief justice, John Jay (scheduled for 2007), through William H. Rehnquist. Titles include The Warren Court: Justices, Rulings, and Legacy, by Melvin I. Urofsky (Santa Barbara, Calif.: ABC-Clio, 2001); The Burger Court: Justices, Rulings, and Legacy, by Tinsley E. Yarbrough (Santa Barbara, Calif.: ABC-Clio, 2000); and The Rehnquist Court: Justices, Rulings, and Legacy, by Thomas R. Hensley (Santa Barbara, Calif.: ABC-Clio, 2006). The First One Hundred Eight Justices, edited by William H. Bader and Roy M. Mersky (Buffalo, N.Y.: William S. Hein, 2004), offers brief profiles of all the justices to serve on the Court up to 2004. Bernard Schwartz's A History of the Supreme Court (New York: Oxford University Press, 1993) presents a comprehensive history of the Court and its justices. Briefer, but also useful, is Lawrence Baum's The Supreme Court (8th ed., Washington, D.C.: Congressional Quarterly, 2004), whose chapters on decision making and on policy outputs are fresh and incisive. Henry J. Abraham, in Justices and Presidents: A Political History of the Supreme Court (3d ed., New York: Oxford University Press, 1992), examines the political implications of appointments to the Court, including those involving chief justices. This book is significant and is well presented. Juvenile readers will find Ann E. Weiss's The Supreme Court (Hillside, N.J.: Enslow, 1987), Catherine Reef's The Supreme Court (New York: Dillon Press, 1994), and Barbara Aria's The Supreme Court (New York: Franklin Watts, 1994) useful.