The Chief Justice of the United States is, in the words of Charles Evans Hughes, who held the position, “the most important judicial officer in the world” (p. i). Given that the judiciary is no longer considered the “least dangerous branch of government,” that importance is magnified. Most students of the Supreme Court can readily identify a litany of powers that belong to the Chief Justice. Chief Justices prescreen the petitions on the crowded docket and develop a discuss list. They preside over the Court in oral arguments and in conference, speaking and voting first. When the Court decides a case and the chief is in the majority, he gets to assign the opinion, which becomes precedent and the law of the land. The Chief Justice is also the titular head of the judicial system. There are numerous opportunities and the potential to exercise effective leadership and shape the Court that bears his name. Past studies suggest that the exercise of those powers will vary with the skills of the occupant of the center seat. For all the talk of power and influence, it is important to remember that the chief is one of nine (for the most part). Some might see the chiefs as simply having a little more authority than their colleagues, being primus inter pares, first among equals.
In some ways, studying the Chief Justice of the United States is like studying the President of the United States. Each office has visibility and a potential for significant power and influence. The number of men who served in each office (and one actually served in both) is small and thus can limit the generalizability of the research. Students of the presidency have talked about the climate of expectations that presidents face, the personality of those who sit in the Oval Office, and the times that shape the context faced by the occupants of the office. The same can be said for Chief Justices, and indeed there are even fewer of them inasmuch as they are not term limited. Thus, studying Chief Justices and their influence has been challenging. David Danelski and Artemus Ward have accepted the challenge and invited a range of public law scholars to reexamine what we know and to push the boundaries of our understanding about the Chief Justice. The resulting tome is a treasure trove that advances our understanding.
Not to diminish the estimable contributions of his coauthor/coeditor, it is fitting to have David Danelski serve as an editor of this volume. His work broke new ground more than a half century ago and is still widely cited. Supreme Court precedents may decay and be overturned, but the findings of seminal studies are passed on and live through citations and bibliographies. It is hard to imagine any theory building in this area that would not reference the pathbreaking work of Danelski. And so this volume begins appropriately enough with two legendary papers he presented at conferences in 1960 and a third more recent paper. Some of this work has not previously been published. Not surprisingly, the two 1960 pieces stand the test of time.
In Chapter 3, Danelski walks in the paths paved by others. In the following 12 chapters, a series of contributing scholars use Danelski’s previous work as a starting point for broadening the perspective on the Chief Justice. Considered together, they give us a fuller picture of the opportunities and constraints that chiefs face and their potential for influence. The volume also provides a useful glimpse of the evolution of social science research. As Charles Cameron and Tom Clark note in their chapter (and each of the other authors would concur), “we follow Danelski’s lead. . . . Coming to the subject more than a half-century later though, we can exploit the perspectives from contemporary theories and empirical studies of Supreme Court decision-making that were unavailable to the pioneers of judicial behavior” (p. 202). And they could have added: aided by a wealth of data their predecessors did not have.
Three sections follow Danelski’s initial three chapters. The chapters in second section (“Becoming the Chief”) deal with the appointment and confirmation of Chief Justices, respectively. Part III has the bulk of the new research, with eight chapters focusing on the influence of the Chief Justice on the Court and testing notions like effectiveness of social and task leadership. The final section has two chapters that examine the influence of the Chief Justice off of the Supreme Court and concludes with an Epilogue. Space limitations prevent me from fully examining all 15 chapters, and my choices of what to emphasize are not based on any qualitative assessment but, rather, on the novelty of some of the contributions.
Danelski wrote about the social and task leadership that Chief Justices are best positioned to exercise, and three generations of scholars have adopted that perspective. In Part III, the authors have constructed empirical tests of the hypotheses that Danelski posited almost 60 years ago. Throughout this section, the recent research largely confirms many of the generalizations that he offered, although the influence was frequently conditional and changed over time.
Agenda control, oral arguments, opinion assignment, the ability to marshal a majority, the tone and tenor of the language of opinions, and the capacity to build consensus on the Court provide opportunities for leadership. In this section, the various scholars deconstruct the Court’s processes and examine the components to determine whether Chief Justices were able to exhibit leadership and influence at each stage. Timothy Johnson and Charles Gregory examine whether chiefs exert influence during oral arguments. They discover that chiefs exercised “public leadership” during oral arguments, asking more questions and structuring the debate. The authors argue that their ability to do so and the tone and tenor of their questions reflect the impact of social and task leadership.
Cameron and Clark examine the influence gained through what they call “procedural power.” They focus their attention on three facets of that procedural power and how chiefs could exercise them to pursue their preferences. They test the ability of the chief to set the Court’s agenda (through the discuss list), the impact of opinion assignment, and whether chiefs were able to obtain the decisions and reasoning they sought. Their findings suggest that chiefs are successful in using all three, lending further support to notions of the influence of task leadership.
The most interestingly titled chapter asks the provocative question: Is he really the “Troll-in-Chief”? Douglas Rice and Christopher Zorn extend the analysis to the affective content of majority, concurring, and dissenting opinions to see if there are differences between Chief Justices. They posit that both the social and task leadership are reflected in the tone and the amount of emotional language in Court opinions. Their findings suggest that opinions have become more negative and polarizing over time, meaning that more recent chiefs are less effective or that the conditions facing the chiefs have become more difficult.
While the notion of the “chief” suggests a platform for influence and the enhanced role of the modern Supreme Court suggests power, the authority of the Chief Justice has limits. Brandon Bartels and Paul Wininger consider whether the Chief Justice is “merely” the first among equals. They examine whether the chief is better at building larger vote margins, more likely than the associate justices to change his vote to join the majority, and whether they work toward furthering legitimacy by citing more authoritative precedents. Their results are consistent with those of the other chapters, finding some evidence of this leadership and a notable time dimension.
Two chapters in the final section deal with the influence of the chief off of the bench. They are noteworthy for examining the administrative duties of the chief and how they can be used to further certain designs and reforms, as well as the bigger “so what?” questions concerning how chiefs can influence (and hopefully protect) the legitimacy of their institution.
This volume is the result of an inspired decision to revisit some seminal work and examine its propositions in the light of new data, some creative adaptations, and much more refined theoretical perspectives. It works on any number of levels.
Danelski’s original work was the product of a different time (more turnover on the Court, different sets of issues, more cases decided, and fewer separate opinions) and different sources of data (papers of the justices). The ability to bring more systematic data and more refined theories to bear provides for some novel and creative tests of hypotheses old and new. The Court has changed significantly since the 1960 papers, and this volume lets us assess leadership and influence and expand the frontiers of our understanding.
So what have we learned at the end of the volume? We were reminded that the formative work of David Danelski has had a paradigmatic life. We have considerable evidence that the leadership potential of the office exists, but that the successful execution varies by the occupant of the center chair and that the ability to exercise leadership may have declined. Whether that is a function of the skill sets of recent chiefs, the broader political polarization, the composition of the contemporary Court, or some other systematic factors awaits further analysis and data.
We are also treated to a broad panoply of the responsibilities of the Chief Justice, with new attention to statutory construction, administrative responsibilities, and protecting the Court’s ultimate resource—its legitimacy. More than 50 years ago, Danelski invited scholars to explore the office of Chief Justice. Across the last six decades, a number of scholars responded. With this volume, the gathering has been expanded, and our knowledge of the Chief Justice has never had more breadth or depth.
