The Internal Powers of the Chief Justice: The Nineteenth-Century Legacy

Abstract

The literature on the role of the Chief Justice of the United States has been dominated by two stereotypes. One, perpetuated by Chief Justices themselves and generally endorsed by other Justices, is that the Chief Justice occupies the role of “first among equals,” meaning that the powers of the Chief are largely formal, such as personifying the Court as an institution, as opposed to substantive, such as exercising disproportionate influence on colleagues. The phrase “among equals” in the stereotype is designed to emphasize the fact that nine Justices participate in the Court’s decisions, that each of their votes is given equal weight, and that the central job tasks of the Chief— hearing arguments, deciding cases, writing opinions—are no different from those of the other Justices. The other stereotype, which has emerged primarily from social science literature, is that the Chief Justice has special opportunities to exercise “leadership” on the Court. This stereotype is connected to a theory of collective decision making in small groups. Although the