Rotating the Chief Justiceship

John G. Roberts Nominated To U.S. Supreme CourtI thought I’d pose a question as the Supreme Court swings back into action with its conference tomorrow.  Is there any legal barrier to making Chief Justice of the United States a title that rotates among the nine Justices?  In other words, could a different Justice be the Chief each Term, with each taking turns?

Why do this?  Basically, as a way of distributing the assignment and presiding powers.  By tradition the Chief Justice assigns an opinion when in the majority, with the Senior Associate Justice doing so if the Chief is in dissent.  Some appellate courts have used a rotating or random assignment system, and nothing stops the Justices from doing that tomorrow,  Even if they did, though, the power to preside would stay with the Chief (along with the various administrative powers given to that office).

The Constitution does not say that we must have a Chief Justice for life.  We must have a Chief Justice, and Article III judges must serve for life, but there is no such thing as a Chief Judge for life in the circuit or district courts.  Nonetheless, the vote in the Senate to confirm John Roberts was for the position of “Chief Justice of the United States.”  This could mean that only he can be the Chief Justice, but could he delegate to his colleagues and make them “Acting Chief Justice” if he so chose?  Furthermore, if the Senate and President refused to name a Chief Justice after Chief Justice Roberts resigns or dies (and simply name another Associate Justice), would that force the Court to adopt its own system (rotating, seniority, or whatever) to pick a Chief?

UPDATE:  Orin Kerr points to the relevant statutory authority in a comment. I wonder what the powers and duties of the Chief Justice are as defined by statute. (Presiding over a presidential impeachment is the only constitutional duty.)

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8 Responses

  1. Orin Kerr says:

    I tend to read 28 U.S.C. 3 as prohibiting what you suggest: “Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.”

  2. Howard Wasserman says:

    Edward Swaine talked about this in a 2006 essay: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=734804. He concludes that the current system is not constitutionally required and that a rotation system based on seniority would be permissible (this is what the circuits and district courts do), as would a system in which the nine sitting justices select the chief.

    Seniority-selection still would be consistent with § 3–the Chief is senior-most and, if unable to act, the next-senior-most (the chief-in-waiting) would perform those duties.

    I can’t cite to authority, but I believe the Chief has certain administrative duties with respect to the Administrative Office of the Courts, the rules committees, the FISA and MDL courts, the Smithsonian, and the Library of Congress. Again, none of these duties require a separately appointed Chief.

  3. Gerard Magliocca says:

    Thanks Howard.

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