As head of the judiciary (whose title is Chief Justice of the United States, not Chief Justice of the United States), the Chief Justice has many responsibilities, more than 80 of which are prescribed by federal statutes that grant him broad authority. But the court's designations for the nine justices who have effective collective authority in “conference” are determined by leadership qualities, not law. Court members who are individually confirmed to positions with life tenure have no obligations to the other members. The only meaningful constraints on the justices' relationships are horizontal, not vertical; justices know they can accomplish little without the cooperation of four others.
When it comes to the Chief Justice of the Supreme Court, there is only so much respect that comes with the job. Real respect must be earned. Chief Justice Warren Burger, who served from 1969 to 1986, was viewed by his colleagues as pompous and manipulative and seemed to earn little respect. Burger annoyed some so much that he leaked compromising details about the Supreme Court in general and Burger in particular to reporters Bob Woodward and Scott Armstrong for their smash best-seller, “The Brethren.”
His successor, William Rehnquist, had been a frustrated justice under Chief Justice Burger for 15 years before becoming Chief Justice in 1986. In important ways, he was the polar opposite of Burger, and was highly regarded by his colleagues, including on the left, as a straightforward man who could be trusted to say exactly what he thought. One of his strengths was that he didn't try to craft a public image and didn't seem to care what others thought of him. He once missed a presidential State of the Union address because it overlapped with an art class at a local recreation center. Rehnquist, who was a far-right wing on the Supreme Court when he joined in 1972, was often a lonely dissenter in his early years. As Chief Justice, he never abandoned his beliefs, but was willing to make concessions if it meant he could be the voice of a unified Supreme Court. Of course, as the Supreme Court became more conservative with the arrival of new Republican-appointed justices, Rehnquist didn't have to make so many concessions. When he died in office at age 80, the grief expressed by his colleagues was genuine, not formal.
As criticism of the Supreme Court has grown in recent months, I've been thinking about Chief Justice Rehnquist. He has passionately defended the Court's status and power, touting judicial independence in his year-end “State of the Judiciary” report and blasting Congress for enacting laws affecting the judiciary without consulting the judiciary. (Chief Justice Roberts deserves credit for condemning President Trump's attacks on justices who ruled against his administration in 2018.) Of course, we'll never know what that would be, but I think Chief Justice Rehnquist would have used his vast knowledge of the Supreme Court to find a way to let Justices Alito and Thomas know that exempting President Trump from immunity from the case would be highly desirable, even if not required. A raised eyebrow might have been enough.
John Roberts served as an associate justice when Justice Rehnquist was an associate justice during his 1980 term. The two men were said to be close, but their hearts were clearly very different. The current Chief Justice has such control over his public persona that it is hard to imagine John Roberts acting spontaneously. But spontaneity is needed now. His dealings with Democratic senators have been stiff and formulaic. If there is a blueprint for dealing with the problems currently swirling around the Supreme Court, it may not be obvious to a Chief Justice who may not have acquired the institutional capital to fall back on when needed.
