Published 9/11/2005

With the formal end of the Rehnquist Court, John Roberts will by definition hearken a new era on the Supreme Court if confirmed as the 17th chief justice of the United States. Before there is a “Roberts Court,” however, there must first be a clearly defined Chief Justice Roberts. With the start of his Senate hearings today, Roberts will begin the transformation from a circuit judge to chief justice. In doing so, he might want to consider the models left by 16 great and not-so-great predecessors.
The role of chief justice has changed dramatically as the court itself has changed. The first chief, John Jay (1789-95), appeared to hate the job. After little more than five years, Jay accepted New York’s governorship rather than continue on a court that he described as “so defective” as to deny any “public confidence and respect.”

With the elimination of onerous circuit-riding duties (requiring justices to travel to remote courts) and an increase in annual salary to more than $200,000 (up from $4,000 in 1789), the position is much more appealing today.

Yet, despite its impressive title, most of 53 statutory duties of the chief justice are fairly mundane, such as picking printers for decisions and maintaining the court building, budget and grounds.

In terms of creating a legacy, one privilege stands out. By tradition, the chief justice is considered the most senior member voting on cases. When the justices vote, the most senior justice on each side selects the justice to write the opinion for his side. Thus, the chief justice always selects the author — including himself — of at least one opinion in a case. It is like a major league batter being able to go to the plate as often as he wishes — and only in the most ideal conditions for a home run. Indeed, the great Chief Justice John Marshall (1801-35) was great in part because he insisted on both unanimity and authoring most of the opinions himself.

What makes for a great chief justice seems to be a mix of luck and timing. Some, such as Earl Warren (1953-69), hit the court at the right time with the right colleagues to hand down historic rulings on segregation and criminal justice.

Others show that a single mistake can doom a legacy. The fifth chief, Roger Taney (1836-64), was viewed as a great chief justice, yet he will forever be tarnished by his vote in the infamous Dred Scott decision (in which the court held that blacks could not be full citizens).

Beware the résumé

A great résumé is not a predicator of a great chief. Both Warren and Charles Evans Hughes (1930-41) are considered great chief justices, but both had largely political, not legal, backgrounds.

Conversely, John Rutledge (1795) had a stellar résumé after serving on both the Supreme Court and as chief judge of the South Carolina Supreme Court. Even so, after receiving a recess appointment, he spent just four months as chief justice, hounded by congressional critics for his past political views and growing questions over his mental competency. Rutledge repeatedly attempted suicide by throwing himself into rivers.

Fortunately, Roberts can pick from less aquatic models:

• The Marshall Model. Marshall was the model of chief justice as paterfamilias, the single paternalistic voice of the court. He laid the very foundation for the modern court as the ultimate authority on the interpretation of the law. Unlike Marshall, however, a modern chief has less authority to pressure unanimity, and modern associate justices are far more independent.

• The Hughes Model. Hughes was the model as facilitator. As Roberts would, Hughes inherited a court in sharp political transition. But he remained popular with his colleagues and brought stability to the court, even in the face of President Franklin Roosevelt’s failed court-packing scheme. Despite a divided court, Hughes often achieved consensus and brought better administration to the court.

• The Warren Model. Warren was the model of the chief as dealmaker. Warren used his considerable political skills to “mass the court,” persuade his colleagues to join in consensus rulings. Though Roberts is congenial, it is doubtful that he would feel comfortable in this type of Warren-like role.

• The Burger Model. The 15th chief, Warren Burger (1969-86) was the model of the imperial chief justice. As a Rehnquist clerk on the Burger Court, Roberts saw the negative effects of this model firsthand. Burger was viewed as a heavy-handed chief who used powers such as case assignments to pressure or punish his colleagues.

• The Rehnquist Model. Rehnquist was the model of chief as honest broker. Unlike Burger, he was widely respected for his fair distribution of cases — often giving historic opinions to others. Yet Rehnquist relied on ideological voting blocs to muscle through “revolutions” in areas such as federalism and the taking of private property.

Following his mentor

Roberts is likely to strive for a role like Hughes’ but ultimately resemble his more ideological mentor, Rehnquist — relying on the emerging hard-right majority to carry the day in cases.

In the end, Roberts could prove to be one of the greats. First, he is young, and longevity can deepen the imprint of a chief justice on history. Second, he’s likely to head a court with a stable conservative majority that, after decades of 5-4 decisions, would be able to reshape the laws in fundamental ways.

Finally, Roberts would take over the court during a time of great uncertainty and dangers. Great problems demand great decisions, and great decisions make for great justices. He may discover it is not necessary to seek out his legacy. He may find a legacy waiting for him at the start of the October term.