Does it Matter Whether John Roberts Becomes an Associate Justice, or the Chief?
Why Both the President and Democratic Skeptics Are Wrong to Think it Does

By MICHAEL C. DORF

Monday, Sep. 12, 2005

Moving quickly in the wake of Chief Justice Rehnquist's death, President Bush announced that he was withdrawing the nomination of Judge John Roberts to the seat vacated by Justice Sandra Day O'Connor, and instead nominating Roberts as Chief Justice of the United States.

With the start of the Supreme Court Term just a few weeks away, Bush said that it was "in the interest of the Court and the country to have a Chief Justice on the bench on the first full day of the fall term."

Democrats reacted swiftly and predictably. New York Senator Chuck Schumer's statement was typical of those who thought that switching Roberts to Chief Justice ought

to imply a higher level of scrutiny. Schumer was quoted as saying, "This nomination certainly raises the stakes in making sure that the American people and the Senate know Judge Roberts's views fully before he assumes perhaps the second most powerful position in the United States."

Yet both Bush and the Democrats are wrong: The Chief Justice wields scarcely any greater power than the other members of the Court. Contrary to Bush's contention, the Court could function perfectly well with an acting Chief Justice, and contrary to Schumer's contention, an Associate Justice merits no less scrutiny than a Chief Justice.

The Court Can Function Without a Chief Justice

Let's begin with President Bush's claim that the Supreme Court needs a Chief Justice to do its work.

It is certainly true that somebody must preside at the Court's conferences and at oral arguments for the Court's business to go smoothly. But there is no reason that Associate Justice John Paul Stevens, the Court's most senior member and still extremely vigorous even at 85 years of age, could not perform those duties as acting Chief Justice. Indeed, that is just what he has done for much of the last year, while the ailing Chief Justice Rehnquist was convalescing.

Of far greater importance than the question whether the presiding Justice in the Court holds the formal title of Chief, is the question whether the Court has a full complement of nine Justices. Yet moving Roberts from the O'Connor seat to the Rehnquist seat does nothing to address that issue.

Should Roberts be confirmed, the Court will only have eight active members, raising the possibility that the Justices will split 4-4 on close cases, thus requiring either that those cases be held over for re-argument next year or that the law will be left in a state of uncertainty. (A tie vote in the Supreme Court has the effect of affirming the lower court decision, but setting no precedent for other cases.)

Why Not Invite Justice O'Connor Back for a Full Term?

Before switching the Roberts nomination to the Chief Justice's seat, President Bush reportedly received an assurance from Justice O'Connor that she would serve until her own successor is confirmed. While the willingness to stay on is laudable on O'Connor's part, given the nature of the Court's work, it is at best a half-measure.

Here's why. It typically takes the Court at least a few months to issue opinions after hearing argument. Suppose that the Senate moves swiftly to confirm Bush's nominee to replace O'Connor. Even so, it is unlikely that he or she would be confirmed before late November. In the meantime, the Justices would have heard, but not decided, dozens of cases. The new Justice would not have participated in the arguments and so would be ineligible to vote in those cases. Yet, at the same time, Justice O'Connor, who would retire upon the new Justice's confirmation, would also be ineligible to vote in them. Hence, in a significant fraction of the Court's cases, only eight Justices would be eligible to vote.

If President Bush were truly concerned about the Court's ability to perform at full capacity, he could ask Justice O'Connor to remain on the Court for one more full Term. Such a request would be unusual, to be sure, but so is the death of the Chief Justice following the retirement of an Associate Justice, based on the Chief's assurance that he would preside for another Term.

Justice O'Connor would certainly be entitled to decline such an invitation from the President. She has served her country with distinction for many years, and the family obligations she invoked in announcing her retirement are no less pressing now than they were in July.

Nonetheless, given her seeming openness to the possibility, it is disingenuous of the President to profess concern for the Court's ability to perform its constitutional function, without at least exploring the option of another full Term of service from Justice O'Connor.

Placing Politics Over Judicial Efficiency

If Justice O'Connor is not willing to remain on the Court for another full Term--or if President Bush is unwilling to ask her to do so--then the President should move swiftly to nominate a successor to her seat.

His current plan of waiting until Judge Roberts is confirmed as Chief to nominate a new Associate wastes precious time. Each day that passes before the Senate can be in a position to hold hearings on the next nominee, ensures that additional cases will be argued to what is, in effect, an incomplete bench. If the President were to name his next pick immediately, Senate staff could begin their work in scrutinizing the new nominee's record, even as the hearings on the Roberts nomination proceed.

It is accordingly difficult to escape the conclusion that the Bush Administration's moves over the last week and a half have been designed to gain political advantage - not to smooth the workings of the Court. Switching Judge Roberts from Associate to Chief Justice does nothing to address the second vacancy on the Court, but it does mean that the President only needs to spend his political capital on two sets of confirmation hearings, rather than the three his nominees would have faced had he left Roberts to fill the O'Connor seat, nominated a sitting Justice to become Chief, and then nominated a third person to fill the vacancy created by that elevation.

Likewise, by withholding the name of his next nominee until after Roberts is confirmed as Chief Justice, Bush robs Democrats and other potential critics of the ability to evaluate the nominees as a package. Instead of focusing on how such a package would likely move the Court overall, liberal and centrist doubters are left in the position of having to treat the confirmation of the conservative but otherwise highly qualified and affable Roberts as a fait accompli when President Bush makes the next nomination.

Allowed to consider a package, Democrats and other critics might have pushed for two moderates. But now, the Roberts confirmation may go smoothly (partly because he is moderate in temperament if not in his substantive views), and then the Administration may hope to have just enough political capital to push through an arch-conservative--notwithstanding the fallout from the Katrina crisis.

The timing of the Bush strategy, then, may be politically shrewd but, in squandering precious time, it belies his suggestion that he has the interests of the Court as a smoothly-functioning institution at heart.

The Chief is at Most First Among Equals

If President Bush's professed concern for helping the Court do its work is subject to doubt, so too is the claim by Democrats such as Senator Schumer that a nomination for Chief Justice warrants more careful scrutiny than a nomination for Associate Justice. To see why, let's consider the substantial similarities and minor differences between the powers of the Chief Justice and those of the other Justices.

The overwhelming similarity between the Chief and the other Justices is that each Justice has only one vote in ruling on cases and deciding what cases to hear. The late Justice William Brennan was fond of holding up his open hand to indicate a fundamental truth of the Supreme Court: His five fingers symbolized the fact that it takes five votes to win a case at the Court.

It is true, of course, that forceful leadership by a Chief Justice can make a difference. The nation's third Chief Justice, John Marshall, was famous for persuading Justices appointed by his Jeffersonian and Jacksonian critics to join his own Federalist (and thus non-Jeffersonian, non-Jacksonian) constructions of the Constitution. Likewise, in just his first Term on the Court, Chief Justice Earl Warren was able to obtain unanimous agreement of his colleagues for the ruling in Brown v. Board of Education, invalidating de jure racial segregation in public schools.

Yet the successful leadership of Marshall and Warren is probably more attributable to their respective forceful personalities and tactics. Each was a very successful politician before moving to the bench.

Moreover, leadership of the Court has, as often as not, been exercised by Associate Justices, not Chiefs. Brennan himself is a good example. With the exception of Brown, it was Brennan, not Warren, who wrote most of the leading liberal decisions of the Warren Court. And it was Brennan's political skills that have typically been credited with stitching together liberal five-Justice majorities from among less-than-liberal colleagues.

As the Court's membership moved further to the right during the 1970s and '80s, Justice Brennan found it increasingly difficult to lead majorities. But power did not flow automatically to the Chief Justice. Instead, it flowed exactly where one would expect: to those Justices in the Court's ideological center--those Justices who might "swing" from liberal to conservative or vice-versa on different issues, and thus create liberal or conservative majorities.

Accordingly, for over a decade, even as Chief Justice Rehnquist has presided over the Court, Justices O'Connor and Kennedy have been the real leaders, voting in the majority--and frequently defining, by their votes, which side would be the majority--in more cases than any other.

The Relatively Minor Additional Powers of the Chief Justice

What about the additional formal powers of the Chief Justice? Might they be reasons for the Senate to pay greater attention to the record of Judge Roberts now, than it would have paid before he was slated for the Chief's seat? A brief catalogue of these powers shows why the answer is no.

The Chief gavels the Court to order and presides over argument sessions. Yet once those sessions are underway, he has no greater substantive power than his colleagues. In a typical oral argument, for example, Justice Scalia is the most aggressive questioner of lawyers.

The Chief has another prerogative that could in theory, but in fact does not, give him greater power than his colleagues: When the Justices meet to vote on cases, the Chief speaks first.

Social science research into group dynamics has shown that, on average, the person who speaks first exercises a disproportionate influence on what others conclude. That makes intuitive sense: The first speaker can frame the debate, and others frequently conform their views in the interest of getting along.

But the social scientists' findings have little bearing on the Supreme Court's peculiar deliberative pattern. In reality, the Justices only very rarely come to the case conference undecided about how they will vote, and ready to be persuaded by the views of colleagues. As Justice Scalia has complained, the Justices do not actually deliberate in conference: rather, they state their respective positions one after the other, essentially conducting no more than an oral vote.

A Justice who hopes to reach an undecided colleague will attempt to do so by one of two means. First, he may use the Court's formal oral argument as a chance to make his case through the attorneys, by asking loaded questions. Second, he may pay a visit to the chambers of a colleague and speak about the case in private. Neither of these mechanisms gives the Chief Justice any greater persuasive power than his colleagues possess.

The Chief also performs a number of unique administrative functions. Notably, his formal title is "Chief Justice of the United States," not "Chief Justice of the Supreme Court." Thus, the Chief sits atop the bureaucracy of the federal courts. But without minimizing the importance of this role, it calls primarily for managerial expertise in which judicial philosophy is almost completely irrelevant.

Most observers (myself included) who frequently disagreed with how Chief Justice Rehnquist voted on cases, nonetheless acknowledged that he did an excellent job in this essentially non-judicial capacity. More information about what John Roberts thought and wrote as a lawyer in the Solicitor General's office has no obvious relevance to how he will perform as head of the federal judicial bureaucracy.

The Symbolic Importance of the Chief Justice

Perhaps the most important difference between the Chief Justice and his colleagues is that the former is a visible symbol of the law in a way that the latter are not. On Inauguration Day every four years, the Chief Justice alone administers the oath of office to the President, and roughly every hundred years, he presides over an impeachment trial of the President.

It might be thought that as a symbolic figure, the Chief Justice ought to be beyond reproach. That is a fair point, but liberals and conservatives disagree about what it means to be beyond reproach.

All can agree that personal and professional integrity and character count, and in the case of John Roberts, all can agree, as well, that he is qualified on these scores. Yet disagreements about substantive constitutional law are likely to reproduce themselves in any substantive discussion about the Chief Justice's symbolic role.

For example, let us stipulate that the Chief Justice must be fully committed to the principle of equal justice under law. How then, should we assess his views about race-based affirmative action? Conservatives view such programs as violating equality while liberals view affirmative action as furthering equality. Similar contrasts can be drawn with respect to abortion, church-state separation and nearly every hot-button constitutional issue.

It is thus understandable that Senators would care about a potential Chief Justice's substantive views in connection with his symbolic importance. But it is not understandable that they would care more about those views for their symbolic quality, than for their impact on how the Court will likely rule on the underlying issues.

And as we have seen, as to that much more important question, the confirmation of a Chief Justice plays roughly the same role as the confirmation of an Associate Justice.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in early 2006.

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