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Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States (with Lane Dilg), 154 University of Pennsylvania Law Review 1575 (2006)


This essay questions the wisdom and the constitutionality of the packet of powers now held by the Chief Justice of the United States. Many of the current attributes of the position are relatively recent additions, generated during the twentieth century through the interaction of a sequence of congressional decisions and the leadership of Chief Justices William Howard Taft, Earl Warren, Warren Burger, 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.

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 electoral 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 principles, the long-held commitments to separation of powers and independent adjudication, and the new range of tasks accruing to the Chief Justice—that makes troubling the range of powers now possessed by the chief justiceship. One individual can serve for decades as a life-tenured administrator-adjudicator. With such tenure 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 thousand in staff, and hundreds of facilities) and also to be successful jurisprudentially 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 adjudication 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, Congress as well as the Chief Justice can and should revisit these powers to revise the charter of that role.

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