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A look at the role of the chief justice

WASHINGTON—Chief Justice William H. Rehnquist once said that his job gave him some of the tools to be "first among equals" on the nation's highest court, but what he achieved depended on how well he used those tools.

"The chief justice brings to office no one but himself," Rehnquist said. He takes a seat with eight other justices he didn't appoint and can't control, so getting anything done depends on more than the structural aspects of the job. It requires a sense of history, perhaps, as well as the power of persuasion and the ability to read the nation's social and political currents.

Historians and court watchers say that only three or four—including Rehnquist—have left a real mark. The others are historical footnotes.

"There's no question that choosing an effective chief justice is very different from picking a good associate justice," said court historian David Garrow. "The crucial aspects of the chief's job are interpersonal skills, not intelligence."

Earl Warren, for example, "had a social vision of the court's role and an understanding of its place in history. And he was able to convince other justices to do what he wanted," Garrow said.

If President Bush is looking for a chief justice who can leave a mark, it would be difficult to overlook his nominee for Sandra Day O'Connor's seat, John G. Roberts. As a private litigator, Roberts spent years figuring out how to convince the Supreme Court to do what he wanted it to do. He won 25 or the 39 cases he argued before the high court.

Richard Stengel, the president of the National Constitution Center in Philadelphia, said the strength of a chief justice also depends on when he or she comes along.

"It definitely takes a strong person, but it's the tenor of the times that allow for them to do what they're doing," Stengel said.

As a structural matter, the chief justice's job is not all that different from that of the associate justices'. The chief gets only one vote on court matters.

The "perks" of the job, if they can be called that, are merely these: The chief assigns other justices to write opinions, but only when he's among the justices in the majority. And the chief justice is the administrative head of the federal judiciary. It's his responsibility to keep the lower courts running efficiently and effectively.

But there's also an air of authority about the job: You can be an associate justice of the Supreme Court, but you're chief justice of the United States. The chief presides over the court's proceedings and runs the conferences in which cases are chosen and decided.

The key is parlaying that titular authority into substantive results—something that a handful of justices have been very skilled at doing. It's about sensing an opportunity in the culture of that moment, and acting on it.

John Marshall, the fourth chief justice, took advantage of a Constitution that was still in its infancy to establish the high court as having the final say on matters of law. Marbury v. Madison, the seminal ruling for the court's authority, established the court as first among equals with the other branches of government in that regard.

Roger B. Taney, the fifth chief justice, used his enormous influence early in his career to expand state powers to regulate economic life in America. But he catastrophically misread the cultural tide on slavery.

Under Taney, the Supreme Court in 1857 declared that blacks could not be U.S. citizens. That case, Dred Scott v. Sanford, is widely considered one of the catalysts for the Civil War.

Earl Warren, the 14th chief justice, proved that the court could unilaterally establish substantial and lasting markers of American equality. The court's unanimous opinion in Brown v. Board of Education in 1954 desegregated the nation's schools and—far ahead of the other branches of government—provided important support for the civil rights movement. The Warren court went on to expand notions of individual liberty far beyond what any court had previously imagined, and beyond what many conservatives now say was constitutionally wise.

Rehnquist's legacy is more complex than that of the other influential chiefs. He has no case on the scale of Dred Scott or Brown v. Board of Education in his portfolio, but his tenure at the court's helm was marked by dozens of less-noted cases that have broadly reshaped the law.

"When Rehnquist came in, the pendulum was beginning to shift away from the idea that courts should be about the enhancement of individual rights," Stengel said. "He helped make that change, but he also rode it effectively."

Garrow said one of the important keys to Rehnquist's success was an understanding that the court's responsibilities went beyond his own personal preferences.

Rehnquist, for example, was a long-time critic of Miranda v. Arizona, a landmark decision that restrains police officers from questioning suspects without informing them of their legal rights.

But when the court had a chance to overrule Miranda in a 2000 case called Dickerson v. United States, the chief wrote the majority opinion preserving Miranda.

"He recognized the constraints of history, and saw that Miranda had become such a cultural marker that you almost couldn't go back to the time before it," Garrow said. "It was a great act of statesmanship. And it reflected the kind of historical deference and understanding he had of the role of the court."

Any chief whose legacy matters 50 years from now will have to be able to do the same thing, Garrow said.


(c) 2005, Knight Ridder/Tribune Information Services.

PHOTOS (from KRT Photo Service, 202-383-6099): Rehnquist

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