Chief Justice Rehnquist as Third Branch Leader

By Wheeler, Russell R. | Judicature, November/December 2005 | Go to article overview

Chief Justice Rehnquist as Third Branch Leader

Wheeler, Russell R., Judicature

By all accounts,

William Rehnquist undertook his role as administrative leader of the federal judiciary in a fair, even-handed, and thoroughly unpretentious way.

A chief justice's roles include the familiar (first among equals on the Court), the visible (administering the presidential oath of office) and the rare (presiding over presidential impeachments). Increasingly important, but little recognized beyond the federal courts, is the role of third branch leader and head of the administrative apparatus that sets judicial administration policy, deals with Congress, and determines the procedural rules that govern lawsuits in federal courts throughout the country.

The basic challenge facing the chief justice in this part of the job is to direct the branch's internal administration and relations with its environment in ways that will, as Chief Justice William Rehnquist said in 1989, "preserve the health of our system of justice."1 Different people have different definitions of a healthy judiciary, but most agree at the least that it is one that resolves disputes independently and efficiently according to law and, to that end, attracts and retains good quality judges and support staff.

Measuring the health of the judicial branch, and the chief justice's contribution to it, is beyond the scope of this essay and a real challenge in any event. It would be difficult to isolate the overall effect of the chief justice's actions as opposed to many other factors that affect federal judicial administration. And there have been so few chief justices to study-only six since William Howard Taft and the beginnings of the modern chief justiceship in 1921 and only three in the last half century (not counting Chief Justice John Roberts). By contrast, there have been 12 presidents, starting in 1933 with FDR and the modern presidency. We can, though, make some preliminary assessments about how William Rehnquist performed this aspect of the position.

Third branch administration

What is the context? The chief justice has, first, the pulpit that the nation's highest judicial office commands. He also is the presiding officer of the Judicial Conference of the United States, comprising the 13 chief circuit judges, 12 district judges elected by their colleagues in the respective regional circuits, and the chief judge of the Court of International Trade. The Conference oversees the Administrative Office of the United States Courts' performance of a long list of statutory duties in such areas as budget preparation and administration, personnel management, technology procurement, and statistical reporting. The Conference also oversees the courts' legislative relations, the rules that govern judicial ethics, and the ongoing revision of the national procedural rules that govern federal court proceedings.

The chief justice appoints the more than 200 members of the Conference's committees. He appoints the Administrative Office's director and deputy director (in consultation with the Conference) and he chairs the Board of the Federal Judicial Center, the courts' research and education agency. Also, he names sitting judges to a few specialized panels, especially courts that act on applications for electronic surveillance in national security matters.2 Outside the judicial branch, he is a member, and traditionally serves as chancellor, of the Smithsonian Institution's Board of Regents.

The federal judicial branch has some of the traits of an executive bureaucracy, including sometimes-hazy lines between policy and administration, tension between policy makers and administrators, and tension between central and local control. But the chief justice is hardly akin to a cabinet secretary. One difference is the substantial authority vested in the Conference itself, although the chief justice enjoys influence in Conference operations way beyond his one vote. Also, the main work of the judicial branch bureaucracy is not administering centrally directed programs but providing support to enable some 1,700 judges across the country manage and decide cases. …

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