New in SCOTUSBlog: "The chief justice should share much of his power"

Today’s a busy day! SCOTUSBlog has published my new installment on Supreme Court reform. This piece focuses on (who else?) the Chief Justice. I write that the Chief should delegate some of his powers to the associate justices.

Here is the introduction:

Under longstanding tradition, the chief justice presides over oral argument and the justices’ private conferences. I propose a change. The chief justice should delegate these presiding duties to his colleagues. Doing so would promote trust among the justices and allow for the experimentation of different leadership styles.

There are two primary duties to be delegates: presiding over oral argument and presiding over the conference.

The division of labor here could be done in different ways. For the simplest approach, each year, the justices could draw a number from a hat to select the presiding justice for a given term. Once a justice serves as chief, his or her name will be taken out of the hat until all other active members have served. That approach would provide more stability and continuity in the chief’s seat. It would also give the presiding justice time to develop an approach to the important role. A justice could opt out of having his or her name drawn at random. This system would be entirely voluntary – but I suspect most of the junior justices would jump at the chance to preside, barring some other extenuating circumstances.

The justices could also rotate during a given term. The court is in session for approximately nine months out of the year from October through June. There is usually one sitting per month. Each of the nine justices could serve during one sitting as presiding officer for oral argument and for the conference. In fairness, the court usually does not hold oral arguments in May and June (although they should.) But I have little doubt that this could be worked out.

Perhaps most critically, my approach would allow different members of the court to assign majority opinions. Here, more justices would be able to direct the trajectory of majority opinions. And since the selection would be random, justices could not game which opinions they can assign. Moreover, the ordering would not be announced to the public in advance. This information might allow litigators to time cert petitions and emergency applications to shop for particular presiding officers. (On the lower courts, savvy litigators know when certain judges are sitting on emergency motion panels and can time their cases accordingly.)

Again, this is yet another reform that would change the power structures on the Court without affecting its composition or jurisdiction. All of these proposals for term limits and expansion only purport to treat the symptoms and not the root cause.

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