The Chief Justice's Special Authority and the Norms of Judicial Power

This Essay explores an incongruity in the allocation and exercise of two different kinds of judicial discretion held by the Chief Justice of the United States. The paradigmatic type of discretionary authority that Article III judges (including the Chief Justice) possess is expressed through the mode of adjudication, and as such is constrained in important ways by procedural forms that accompany that kind of official action. Judges are constrained, to a greater or lesser extent, by formal “law,” but their discretion is additionally limited by the collective structures of the federal judiciary and also by the normative expectation that judges give express reasons for their decisions. In this sense the appointment of an Article III judge can be regarded as a form of license to exercise bureaucratic discretion for a lifetime, but to do so under certain well-defined rules. We tell judges to follow “the law,” to be sure, but we don’t rest our faith entirely on the law’s uncertain formal constraints. Instead, judges exercise power collectively, are limited to particular cases and controversies, and are obliged to give reasons for each important decision that they make. So it is for most federal judges, including the Chief Justice in his primary role of deciding cases on the United States Supreme Court. Within the Court’s core adjudicative function, the Chief’s status as “prima inter pares”—first among equals—is a well-known and generally apt description of a type of special status that is highly visible, but also limited in important respects. The Chief Justice’s adjudicative power is structured and channeled in ways very much like the other eight Justices on the Court, and, in a more general sense, is much like the authority of any judge on a multimember appellate tribunal. The Chief Justice exercises independent discretion in a formal sense when