RESPONDING TO A DEMOCRATIC DEFICIT: LIMITING THE POWERS AND THE TERM OF THE CHIEF JUSTICE OF THE UNITED STATES † JUDITH RESNIK & LANE DILG This essay questions the wisdom and the constitutionality of the packet of powers now held by the Chief Justice of the United States.1 Many of the current attributes of the position are relatively recent additions, generated during the twen- tieth century through the interaction of a sequence of congressional decisions and the leadership of Chief Justices William Howard Taft, Earl Warren, Warren Bur- ger, and William Rehnquist. These jurists responded to new demands as national law grew in importance in the American polity, and they introduced new ideas that gave the federal judiciary the capacity to function as a programmatic, agenda-setting agency. † All rights reserved, 2006. Judith Resnik, Arthur Liman Professor of Law, Yale Law School. Lane Dilg, Yale Law School, J.D. 2004. 1 This article, first presented as a talk at the Symposium, The Chief Justice and the Institutional Judiciary, in November of 2005 at the University of Pennsylvania Law School, builds on several others, including Judith Resnik, Democratic Responses to the Breadth of Power of the Chief Justice, in REFORMING THE COURT: TERM LIMITS FOR SU- PREME COURT JUSTICES 181 (Roger C. Cramton & Paul D. Carrington eds., 2006) [hereinafter Resnik, Democratic Responses]; Judith Resnik, So Long: Changing the Judicial Pension System Could Keep Judges from Staying on the Bench for Too Many Years, LEGAL AFF., July-Aug. 2005, at 20; Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 CARDOZO L. REV. 579 (2005) [hereinafter Resnik, Judicial Selection]; Judith Resnik, “Uncle Sam Modernizes His Justice”: Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 GEO. L.J. 607 (2002) [hereinafter Resnik, Inventing the District Courts]; Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924 (2000) [hereinafter Resnik, Trial as Error]; and Lane Dilg, From First Among Equals to Chief Executive Officer: The Powers and Duties of the Chief Justice of the United States (2005) (unpublished manuscript, on file with the Yale Law Library). Our thanks to current and former students Joseph Blocher, Marin Levy, Bertrall Ross, Laura Smolowe, Steven Wu, and Sofia Yakren, and especially to Chinelo Dike and Emily Te- plin who worked so ably on the recent drafts, to Gene Coakley and Camilla Tubbs for all their efforts to locate relevant materials, to Vicki Jackson, Linc Caplan, Theodore Ruger, Linda Greenhouse, Robert Post, and Albert Yoon for helpful comments, and, with great appreciation, to Denny Curtis, Russell Wheeler, and Paul Carrington for thoughtful readings of and comments on an earlier draft. Thanks are also due to Pro- fessors Stephen Burbank and Theodore Ruger, who shepherded the Symposium of which this contribution is a part, and to the editors of the University of Pennsylvania Law Review who hosted it. (1575) 1576 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 154: 1575 The reconfiguring of judicial power and structure within the federal system took place as, more generally, democratic mandates were reinterpreted to insist both that women and men of all colors had rights enforceable by courts and that the judiciary ought to include individuals diverse enough to capture an expanding class of litigants. Further, as concerns emerged about how, through popular elec- toral processes, individuals could entrench their authority for unduly long periods of time, American democracy revisited its institutions of electoral politics in the hopes (not yet well realized) of imposing constraints on the power of elected officials to entrench their own or their parties’ power. It is the interaction among these factors—the developing democratic princi- ples, the long-held commitments to separation of powers and independent adjudi- cation, and the new range of tasks accruing to the Chief Justice—that makes trou- bling the range of powers now possessed by the chief justiceship. One individual can serve for decades as a life-tenured administrator-adjudicator. With such ten- ure in office, one person has a unique opportunity to forward positions through two channels: by building a body of doctrine in case law and by building a set of policies in administrative directives. When an individual is asked to be instrumental on behalf of the billion-dollar agency called “The Federal Courts” (with some two thousand judges, thirty thou- sand in staff, and hundreds of facilities) and also to be successful jurispruden- tially as a disinterested adjudicator, one role cannot help but bleed into the other. Each role amplifies the power of, distracts from, and imposes costs on the other. Such conflation undermines democratic principles and the legitimacy of adjudica- tion by giving the few individuals who hold the chief justiceship a disproportionate impact on American law. The history of the developments of the twentieth century makes plain the plasticity of the packet of activities associated with the chief justiceship. Because the powers are artifacts of custom and statute rather than the Constitution, Con- gress as well as the Chief Justice can and should revisit these powers to revise the charter of that role. 2006] RESPONDING TO A DEMOCRATIC DEFICIT 1577 TABLE OF CONTENTS I. RARE POWERS, UNDEREXAMINED.................................................... 1577 II. AN ODD CONFIGURATION OF AUTHORITY ..................................... 1588 A. Running the Court ...................................................................1588 B. Running the Federal Judicial System, Itself Transformed ................1592 1. A New Federal Bureaucracy .................................................. 1594 2. Policymaking Through the Judicial Conference ................. 1599 3. Addressing the Nation........................................................... 1608 4. Lobbying the Congress.......................................................... 1611 5. Appointing Judges to Special Courts and Committees........ 1615 C. Additional and Peculiar Powers: From the Smithsonian to Garnishment..........................................1619 III. THE ANOMALY OF LIFE-TENURED MULTI-TASKING....................... 1621 A. Mixing Roles ...........................................................................1621 B. Undue Accumulations of Power ..................................................1631 C. Representation Undermining Disinterest ......................................1634 IV. A CREATURE OF CONGRESS AND CUSTOMS, NOT THE CONSTITUTION ............................................................. 1636 A. Constitutional Opportunities.......................................................1636 B. Statutory Innovations and Occasions for Self-Restraint ..................1644 Appendix A: Tenure of Chief Justices of the United States, of Directors of the Administrative Office of the U.S. Courts, and of Directors of the Federal Judicial Center ..................................... 1650 Appendix B: Statutory Duties of the Chief Justice of the United States...... 1652 Appendix C: Tenure and Methods of Selection of State Chief Justices ...... 1658 I. RARE POWERS, UNDEREXAMINED Chief justiceships turn over infrequently in the United States. The new Chief Justice is only the seventeenth person since the founding of the United States to hold that position.2 Academic conferences on the office of Chief Justice are similarly rare. The one predecessor to this Symposium, which was held in November of 2005 after the Senate con- firmed Chief Justice John Roberts, occurred in 1982 when the University of Virginia convened a roundtable discussion while Warren Burger’s chief justiceship was in full swing.3 More frequent conversations are in 2 See infra Appendix A, Tenure of Chief Justices of the United States, of Directors of the Administrative Office of the U.S. Courts, and of Directors of the Federal Judicial Center, for a list of Chief Justices, running from John Jay, whose service began in 1789, through John G. Roberts, Jr., whose service began in 2005. 3 See THE OFFICE OF CHIEF JUSTICE 1 (White Miller Burkett Ctr. of Pub. Affairs 1984) [hereinafter THE OFFICE OF CHIEF JUSTICE]. Included in this volume is an ed- 1578 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 154: 1575 order in light of substantive changes in the portfolio of the Chief Justice, in the function of courts, and in democratic aspirations for adjudication. This contribution is predicated on four points. Our first is to analyze the range of activities now undertaken by the Chief Justice. The content of the role of Chief Justice stems not from the Constitution (which men- tions the term only once, when discussing who presides in the event of an impeachment trial of the President)4 but from dozens of statutes en- acted in an ad hoc fashion over many decades, from customs, and from the vision, decisions, and ambitions of those who have held the office of the Chief Justice.5 Many facets of today’s chief justiceship are relatively new and not well known. In earlier eras, the Court relied on long oral arguments rather than briefs; the Chief Justice did not—as happens today—cut ad- vocates off mid-sentence at the end of thirty minutes.6 Moreover, when defending the judiciary from attack, Chief Justice John Marshall resorted to a nom de plume;7 today, the Chief Justice makes such arguments in an annual year-end