SCOTUS for law students: The roles of the chief justice

When Chief Justice John Roberts takes his place in the middle seat on the bench, he is performing his most visible and widely known duty: presiding over the Supreme Court. But the chief justice also has a number of other roles, both within the judiciary and outside the court.

Roberts acted in one of those roles a month ago, when he named several new chairs of committees of the Judicial Conference of the United States, the policymaking arm of the federal judiciary. Consisting of the chief judges and one district judge from each of the federal circuit appeals courts, the Judicial Conference meets twice a year to review rules for the judiciary and to recommend positions on legislation that affects the federal courts. As “Chief Justice of the United States,” Roberts is the head of the entire federal judicial system. In this capacity he is the chair of the 26-member Judicial Conference, presides over the semi-annual meetings and appoints members to committees.

What was especially interesting about the most recent appointments, announced on October 10, was that Roberts selected Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to chair the executive committee of the Judicial Conference. Garland was nominated by President Barack Obama to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia in February 2016. The Republican majority in the Senate refused to consider Garland’s nomination, which lapsed in January. President Donald Trump then successfully nominated Neil Gorsuch, who joined the court in April. Roberts had appointed Garland to be a member of the executive committee in 2013 but has now elevated him to chair the panel, an important position for Garland.

Chairing the Judicial Conference is not the only role the chief justice plays at the top of the federal court system. At the end of the calendar year, the chief justice issues an annual report on the state of the federal judiciary. These reports highlight matters of concern or special interest in the federal courts, ranging from the need for more judges to pay raises or protections for judicial independence. In the most recent report, issued on December 31, 2016, Roberts focused on the important role of federal district judges, saying, “District judges make a difference every day, and leave a lasting legacy, by making our society more fair and just.” Each annual report includes a summary of the workload of the federal courts.

The chief justice also selects the director of the office that handles administrative issues for the courts, the Administrative Office of the U.S. Courts, currently James Duff, and serves as chairman of the board of the Federal Judicial Center, the education and research arm of the federal courts.

As chief justice, Roberts has two other appointing roles. He picks the members of the Foreign Intelligence Surveillance Court, the secretive tribunal that reviews requests for wiretaps and other surveillance for foreign-intelligence purposes. Roberts also appoints judges to the Judicial Panel on Multidistrict Litigation, the entity that determines where trials will take place for cases that are filed in numerous federal district courts.

One of the chief justice’s most unusual jobs is as chancellor of the Smithsonian Institution, which runs the many public museums along the National Mall. As chancellor the chief justice presides over meetings of the Smithsonian’s board of directors, which meets four times a year. Roberts generally presides over the afternoon sessions, leaving the board chairman to run the meetings in the mornings.

Of course, it is his role at the Supreme Court that is the main focus for Roberts. As chief justice, Roberts is responsible for running the court, both judicially and administratively.

On the judicial side, the chief justice presides over the Supreme Court’s private conferences, in which the justices decide which cases to hear and then resolve the cases on the merits. Each year, the justices receive about 6,400 requests for review, known as petitions for certiorari, of which they grant only about 70. For each conference, the chief justice suggests which petitions merit discussion by circulating a “discuss list.” Other justices may add cases to the list. Cases that do not make it on to the discuss list are presumptively denied review by the Supreme Court.

As chief justice, Roberts is the most senior member of the Supreme Court, even though other justices have been there longer. As the court considers whether to grant or deny review in a case, the chief justice speaks first, summarizing each case and indicating whether he favors hearing it. The other justices then follow in order of seniority. This procedure is repeated again after the court hears oral argument in a case. When the justices go into their conference to consider and decide argued cases, Roberts speaks first and summarizes the issues and his take on them.

One of the most significant powers of the chief justice is choosing who will write the majority opinion. If the chief justice is in the majority, the assignment power is his. If the chief justice is in dissent, then the majority opinion is assigned by the most senior justice in the majority. By custom each of the nine justices is assigned roughly the same number of majority opinions, but the chief justice can decide who gets the more important ones. Once the opinions are assigned, the chief justice sometimes rides herd to make sure his colleagues keep the flow of opinions moving. Chief Justice William Rehnquist would refuse to give new opinions to colleagues who were well behind on cases they had already been assigned.

In other respects, the chief justice is often described as “first among equals.” He can try to set a tone for the Supreme Court, for example, encouraging the justices to interrupt each other less during arguments, or letting lawyers arguing cases complete a sentence when their time runs out. (Rehnquist used to interrupt lawyers in mid-sentence, occasionally even in mid-syllable when their time expired.) To promote civil discourse in the courtroom, Roberts has encouraged lawyers to refer to opposing counsel as “my friend” or “my friend on the other side.”

Administratively, the chief justice manages the Supreme Court as an institution, relying on a staff for personnel matters, building and maintenance issues and more. It also falls to the chief justice and his staff to deal with controversies or criticism of the court. For example, Jeffrey Minear, counselor to Chief Justice Roberts, recently explained in a letter to a bipartisan group of members of Congress why the court would not have live audio streaming of the oral argument on October 3 in the important Wisconsin gerrymandering case. “I am sure you are, however, familiar with the Justices’ concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and Justices,” Minear wrote. Chief Justice Roberts has also occasionally responded to criticism of the court’s lack of a code of ethical conduct for the justices.

Finally, the chief justice has two other critical roles. One happens rarely, and the other recurs every four years. According to the Constitution, the chief justice presides over Senate impeachment trials of the president. Rehnquist presided over the trial of President Bill Clinton, who was not convicted by the Senate.

The chief justice also administers the oath of office to the president at each inauguration. Roberts swore in Trump in January and administered the oath to Obama after the 2008 and 2012 elections. It is an historic anomaly that Roberts has actually administered the oath to Obama four times. At the inauguration in 2009, Roberts mixed up a line and Obama followed him down the wrong rhetorical path. To be safe, the oath was repeated the next day at the White House. And in 2013, Roberts administered the oath to Obama at the White House on Sunday, January 20, when the president legally had to be sworn in. But the oath was repeated the next day at the inauguration ceremony on Monday, January 21.