Court in Transition
Beyond The Bench
Rehnquist Proved an Astute Advocate of the Courts, But Some Wonder Whether His Successor Should Cut Back
Posted Nov 29, 2005 2:29 AM CST
By Molly McDonough
As he takes over the center chair at the U.S. Supreme Court, new Chief Justice John G. Roberts Jr. has more than just that seat to fill. The successor to the late Chief Justice William H. Rehnquist assumes a variety of other roles as the judicial system’s chief executive officer.
Among those duties is heading the increasingly influential Judicial Conference of the United States, which has evolved into a powerful lobby and has galvanized an independent judiciary at the federal level and, to some extent, the state level.
Indeed, it will be a vast seat because Rehnquist, who died Sept. 3, wielded tremendous influence through the policy-making Judicial Conference and as an advocate and spokesman for the often-underfunded judicial branch, which increasingly finds itself at the center of political attacks.
Many praised Rehnquist for expanding the role of chairman beyond that of a mere figurehead, for carefully selecting leaders within the organizations who furthered his agenda.
But others wonder whether the power and authority of the chief justice position may need to be curtailed or diluted at some point by Congress or the new chief. They say the policies that chief justices advocate sometimes come too close to issues that arise in cases they must decide.
“Rehnquist used his repertoire of authority in a powerfully intelligent manner to forward interests that he perceived important,” says Yale University law professor Judith Resnik, who has researched the relationship between the chief justice, Congress, the president, and the state and federal systems.
While the role of the chief justice as mentioned in the Constitution is fairly limited, including only the power to preside over presidential impeachment proceedings, Resnik and others have argued for years that there has been a marked expansion of the chief’s authority through acts of Congress and by tradition, especially over the last 30 years.
“The chief has an enormous amount of authority based both on custom and on more than 100 federal statutes that authorize him to undertake a variety of different roles,” says Resnik, who testified about the power of the chief justice on Sept. 15 during the Senate Judiciary Committee’s confirmation hearing for Roberts.
Indeed, the chief justice is empowered with the authority to appoint specialized courts, including the Foreign Intelligence Surveillance Court, the Alien Terrorist Removal Court and the Judicial Panel on Multidistrict Litigation. The chief also chairs the board of the Federal Judicial Center, which sets the continuing education agenda for state and federal judges. And the chief has the power to appoint and remove the director of the Administrative Office of U.S. Courts. All this is in addition to his key duties as the public and private leader of the nine-member Supreme Court.
Yet central to the chief justice’s authority is his role as chairman of the Judicial Conference. It was founded in 1922 as a group of senior circuit judges who would advise Congress about the staffing and docket needs of the judiciary. Since then, the Judicial Conference has blossomed into an influential lobbying force that responds to questions from Congress and offers perspective on the impact of legislation.
Chief In Charge
The conference is made up of 27 judges, including the chief judges of each judicial circuit and of the Court of International Trade and a district judge from each regional judicial circuit.
But the conference’s reach is broader, in large part because it is supported by numerous committees and advisory committees that include federal and state court judges--all of which are appointed by the chief justice.
“The chief sets the agendas. The chief appoints membership committees. The chief appoints special courts. The chief is the one who every year addresses Congress and creates a state-of-the-judiciary talk,” Resnik says.
Recently, the conference has debated whether cameras have a place in the courtroom, the limits of secret settlements and sealed court records, and whether lawyers ought to be able to cite unpublished opinions. The new chief also is likely to preside over issues involving court security, technology and facility construction. In addition, the conference committees develop and recommend adoption of court and practice rules for criminal, civil and appellate practice.
Roberts has firsthand experience with the Judicial Conference, having served on the Advisory Committee on Appellate Rules as practitioner and judge. In those roles, he supported the ability to cite unpublished decisions, says Washington, D.C., appellate lawyer Mark Levy, who took Roberts’ place as practitioner on the committee a couple of years ago.
“John does bring that unique perspective based on his own personal experience,” Levy says.
Like the Wisconsin-born-and-bred Rehnquist, Roberts has Midwestern roots, having been raised in Northwest Indiana. Both men were educated at Harvard, though Rehnquist also went to Stanford. Roberts served as a favored Rehnquist law clerk in 1980 and 1981 before going on to work as a special assistant attorney general at the Justice Department and as associate counsel to President Reagan from 1982 to 1986. He entered private practice briefly before becoming a deputy solicitor general from 1989 to 1993. After his government service, Roberts built a distinguished appellate practice, arguing some 40 cases before the Supreme Court.
His judicial experience is fairly limited, since he was on the U.S. Court of Appeals for the District of Columbia Circuit for only two years. So how Roberts will perform as chief justice is anyone’s guess.
Then there is the more public role, with the chief as spokesman or advocate for the judiciary. Rehnquist long advocated for an independent judiciary and a collaboration between the state and federal courts.
In a 1992 speech celebrating the Delaware Court of Chancery’s bicentennial, Rehnquist said: “We need to reaffirm the view that our state and federal judicial systems are one resource, and an increasingly scarce one at that. The nation can no longer afford the luxury of state and federal systems that work at cross purposes or irrationally duplicate each other’s efforts. Nor can it afford a view that state courts are second class tribunals in our system of justice.”
“He has had a great influence on the state courts and the positioning of state courts in the federal system,” says E. Norman Veasey, a former Delaware Supreme Court chief justice who was a Rehnquist appointee to the conference’s Committee on Rules of Practice and Procedure. Rehnquist was popular among many in the state court judiciary in part because, as Veasey notes, “He was a believer in the principles of federalism that resonate well with the state judiciary.”
Rehnquist also endeared himself to the state courts by establishing the William H. Rehnquist Award for Judicial Excellence, presented through the National Center for State Courts by the chief justice each fall at an invitation only dinner.
These roles, along with his annual address to Congress, positioned Rehnquist as a “visible champion of the judiciary,” says University of Pennsylvania law professor Stephen B. Burbank, the chairman of the American Judicature Society’s Task Force on Judicial Independence and Accountability who served as Chief Justice Warren E. Burger’s law clerk.
Rehnquist, Burbank says, was not reluctant to speak out when he thought the judiciary was not being well served by Congress.
Big Shoes To Fill
Stephen Wermiel, an expert on the Supreme Court who teaches constitutional law at American University’s Washington College of Law, wonders whether Roberts or another member of the court will step up to the plate as effectively as Rehnquist did in representing the courts.
“I think Rehnquist was a very effective and diligent spokesman for the independence of the federal judiciary, and maybe all the more so because he at various times in the past himself believed that federal judges were exceeding their authority in school desegregation cases or reaching too far in other controversies,” Wermiel says.
Regardless of those past criticisms, Rehnquist rose to the task and took “the view that the chief justice has to be the spokesman and defender for the federal courts,” Wermiel adds. “That was really kind of a remarkable achievement on his part.”
Rehnquist most visibly spoke to Congress through his year-end reports, which he crafted and which were separate from the policy of the conference.
But the year-enders and Judicial Conference positions could sometimes stir controversy, especially when the two seemed inseparable.
“Sometimes he led the conference or acquiesced on legislation that I would have thought would have been ill-advised as too close to the sorts of policy questions that are appropriately for members of Congress to vote on,” Burbank says.
Take the 1994 Violence Against Women Act. The Judicial Conference, while supportive of the statute’s educational components, initially opposed the proposed enactment of Title III, the new civil rights action. As the legislation progressed and more exchanges were made between the conference and Congress, the conference later took no position on Title III but continued to support the aspects relating to education and the study of the effects of gender in the courts.
Then the chief justice spoke up. In his year end reports, Rehnquist raised constitutional viability questions about legislation, including the Violence Against Women Act. And finally in 2000, Rehnquist wrote for a 5-4 majority in United States v. Morrison, 529 U.S. 598, which effectively struck down the Title III civil rights remedy in the statute.
“We can all point to examples where efforts at lobbying from either the chief or the Judicial Conference had an effect on legislation,” Resnik says. At some point, she says, Congress could see fit to curtail the power of the office of chief justice. Or it’s possible that the new chief will seek to diffuse the concentration of power by assigning responsibilities to others or asking Congress to shift authority elsewhere.
During her testimony, Resnik suggested that the chief justice position could be rotated every four to six years, either by an act of Congress or by members of the high court. The idea was well-received by Judiciary Committee Chairman Arlen Specter, R-Pa., who responded by calling it a “fascinating suggestion” and probing her further about whether Congress had such authority.
Resnik, who in general favors “rethinking allocation of authority” of the administration of the courts, answered that she thought Congress or the court itself could enact such a rotation and do other things, such as rotate the chairing of the conference among chief judges of the circuit courts.
“Because the role of the chief justice is a mixture of dozens of statutes from the Congress, episodically enacted, and many customs, it would be possible for the court to develop a custom that would alter the allocation of authority,” Resnik testified. Or, she said, Congress could act to say that “the chief justiceship is a position that could be inhabited by one member of the court for a certain period of time and then by another.”
But there already is plenty of evidence that the chief’s authority has its limits.
One of the most frequent themes in the Rehnquist year-enders and other speeches was judicial pay. The message bore repeating because it was a near constant issue in Rehnquist’s 19 years as chief justice.
In 1989, Rehnquist identified judicial salaries as “the single greatest problem facing the judicial branch today.” He pointed out in a 2002 statement to the National Commission on the Public Service that law clerks go on to join large law firms and pull down first-year salaries higher than those of district judges. He emphasized that “many of the very best lawyers, those with a great deal of experience, are not willing to accept a job knowing that their salary will not even keep pace with inflation. Our judges will not continue to represent the diverse face of America if only the well-to-do or mediocre are willing to become judges.”
Yet salaries and judicial funding fights remain an annual battle. Burbank says that some of the disconnect between the judiciary and Congress on salaries and funding can be attributed to the inability of some Rehnquist appointees to communicate the message to Congress effectively.
While some of Rehnquist’s chosen committee leaders have been “adroit politicians,” Burbank says, others have come across as “aloof, arrogant and not willing to engage in dialogue” with Congress.
Recently, however, “we’ve seen many more committee chairs who are effective in their dealings,” Burbank says. “The judiciary is extremely well-served by that.” But it hasn’t been enough to convince the House of Representatives that judges deserve a pay increase greater than a cost-of-living adjustment.
Nevertheless, judges who have served under Rehnquist say he did the best he could. “The involvement not only of the chief justice but of several junior justices in that effort is unprecedented,” says Chief Judge Carolyn D. King of the 5th U.S. Circuit Court of Appeals, which is temporarily based in Houston. King chaired the Judicial Conference’s executive committee through Sept. 20. “I have to give him credit for that, for at least sending the signal. At the end of the day, we didn’t get the pay raise, but certainly we had enormous support in the Senate and the executive” branch.
Rehnquist’s willingness to advocate for an often underpaid, underfunded judiciary earned him praise from judges throughout the country and especially from those who worked with him through the conference.
“I would give him the highest marks,” says Deanell R. Tacha, the chief judge of the 10th U.S. Circuit Court of Appeals at Denver. Tacha serves on the conference’s Committee on the Judicial Branch, which examines issues involving judicial pay, benefits and the judiciary’s often strained relationship with Congress.
Rehnquist was “superb in terms of responding very precisely to the issues that my committee was focusing on” and “extremely important to the effective administration of the judiciary,” Tacha says.
Even while fighting thyroid cancer, Rehnquist was widely viewed as having been an adept administrator both on and off the court. Nominated to the high court by President Nixon and seated in 1972, Rehnquist was elevated to chief in 1986 by President Reagan. He served in the U.S. Army Air Forces before getting his law degree at Stanford and a master’s at Harvard. He went on to clerk for Justice Robert H. Jackson, then practiced law for about 16 years in Arizona. His Supreme Court nomination came while he was working in Washington, D.C., as an assistant attorney general in the Office of Legal Counsel.
Even before his death, thoughts of Rehnquist’s imminent departure as chief justice caused many judges to reflect on his key administrative role and worry about what’s next.
Rehnquist knew everything that was going on, kept informed and spoke up if something troubled him, says the 5th Circuit’s King.
Judge Juan R. Torruella from the 1st U.S. Circuit Court of Appeals at Boston acknowledges, however, that there is concern over a change in the status quo.
“There’s no question that whoever comes in the future will have their own view of how things will operate, and there will be some rocking of the boat,” Torruella says. And, simply, Rehnquist will be missed. “I think he was a good person,” Torruella says. “Everything he did has that stamp.”
Molly McDonough is a legal affairs writer for the ABA Journal.