Five Chiefs Read online

  The duties for which the chief justice receives only 4 percent of his pay are weighty and numerous. Some are well known. By tradition, the chief justice administers the oath of office to the president on Inauguration Day; presides over proceedings in open court and in the confidential conferences attended by only the nine justices; and, in most cases, assigns the writing of the opinions that explain why litigants have won or lost their cases. (When the chief is in dissent, the senior justice in the majority makes the assignment.)

  Congress has enacted a number of special statutory provisions giving the chief the authority to designate federal judges and retired justices to serve in different capacities in the federal judicial system. For example, he selects the judges who serve on the seven-member judicial panel on multidistrict litigation as well as the eleven district judges of the Foreign Intelligence Surveillance Court, who decide whether to grant applications to engage in electronic surveillance for national security purposes. There are more bureaucratic responsibilities as well: A separate group of statutes requires his participation in the process of relieving lower court chief judges of their duties as chiefs while retaining their active status as judges. One of those statutes provides him with authority to sign a certificate of disability to be presented to the president when either an associate justice or a lower court judge seeks to retire on account of disability.

  The chief also serves as the circuit justice for three of the thirteen United States Courts of Appeals. Each member of the Court serves as the circuit justice for at least one circuit, ruling on such matters as extensions of time in which to file briefs and emergency applications to grant stays delaying the enforcement of orders entered by federal judges in the circuit. For most such applications, the decision of the circuit justice is final. But in some cases, such as requests to postpone the execution of a prison inmate on death row, the circuit justice will refer the application to the entire Court for decision. In these instances, the circuit justice prepares a memorandum setting forth his or her views about how to respond to the application. A majority vote will then determine whether to accept the circuit justice’s recommendation.

  Following the tradition established by John Marshall, the chief’s portfolio includes the court sitting in Richmond, Virginia, which today makes him circuit justice for the Fourth Circuit. That circuit encompasses Maryland, North Carolina, South Carolina, Virginia, and West Virginia. He is also circuit justice for the District of Columbia Court of Appeals, which reviews decisions of federal district courts in the District of Columbia as well as a variety of decisions by federal agencies, and for the Court of Appeals for the Federal Circuit. The Federal Circuit hears appeals from all over the country, though only on certain subjects, those which, broadly speaking, include claims against the United States, patents, and cases involving international trade or American Indians.

  Among the chief justice’s most important responsibilities is presiding over the Judicial Conference of the United States. This body, which was conceived by Chief Justice Taft and later authorized by an act of Congress, is the policy-making body for the federal judiciary. Its twenty-six members consist of the chief judge of each of the thirteen courts of appeals and one district judge from each of those circuits. In his role as presiding officer, the chief prepares the agenda and appoints committees that recommend improvements in the administration of justice in the federal courts. There are currently twenty-five committees that address a broad range of issues, including case administration and management, codes of conduct, court space and facilities, and rules of procedure. The statutes creating the Judicial Conference require the conference, which in practice means its presiding officer, to submit to Congress an annual report of its proceedings and its recommendations for legislation. The chief justice also chairs the board of the Federal Judicial Center. The FJC provides continuing education for federal judges, including orientation programs for new judges, and conducts empirical research on court-related issues, such as management and operations, for both the Judicial Conference and Congress.

  The chief also approves the participation of retired Supreme Court justices in the work of other federal courts. Justice David Souter, who retired on June 29, 2009 (exactly a year before I did), has served regularly in the First Circuit, the jurisdiction of which includes his home state of New Hampshire, while Sandra Day O’Connor, who retired on January 31, 2006, has visited most, if not all, of the courts of appeals.

  After Tom Clark retired, in 1967, when his son, Ramsey, became the attorney general, he tried cases as a district judge and helped out in the appellate courts. In one of those cases, my partner Bill Myers and I represented Charles O. Finley, who had just moved his American League baseball team from Kansas City, Missouri, to Oakland, California. Years earlier, the team had been located in Philadelphia, where Connie Mack had entered into a long-term contract guaranteeing that the team’s concessionaire would retain its rights if the team should move. Justice Clark not only refused to enforce the terms of that contract but also awarded damages to Finley in his counterclaim against the concessionaire. (The case had a longer life span than my career on the court of appeals; although I was active in the case for over three years, Bill was unable to bring it to a successful conclusion until months after I joined the Supreme Court.)

  Two highly publicized cases decided by the Court of Appeals for the Seventh Circuit while I was a member illustrate the importance of a unique responsibility that the chief justice must occasionally exercise: his duty to select a judge from one district to preside at a trial if all the active judges in that district are disqualified and to select a panel of appellate judges if all the appellate judges in that circuit are disqualified. One of those cases, United States v. Dellinger—popularly known as the conspiracy seven case—arose out of the demonstrations in Chicago’s Grant Park during the 1968 Democratic Convention. Those demonstrations lasted for several days, included an attempted march to the convention site, and resulted in hundreds of injuries to and multiple indictments of both protesters and police. The trial of the protesters went on for months, producing a mammoth record and a number of highly controversial rulings by district judge Julius Hoffman. Because of the importance of the case and the size of the record, the court of appeals decided that the members of the three-judge panel reviewing the decisions—Judges Tom Fairchild, Walter Cummings, and Wilbur Pell, who had been chosen by lot—should not participate in any other cases until after Dellinger had been argued and decided. The panel reversed Judge Hoffman and sent the case back for another trial before a different judge, and Chief Justice Burger appointed Judge Edward Gignoux of the District of Maine to preside over those proceedings.

  While the court of appeals was undermanned because three judges were preoccupied with the conspiracy seven appeal, another active judge, Otto Kerner Jr., was indicted by a federal grand jury for conduct that had occurred while he was governor of Illinois. Warren Burger designated Robert Taylor, a district judge for the Eastern District of Tennessee, to preside at the trial in Chicago. Burger also appointed the special panel of circuit judges who heard Kerner’s appeal and affirmed his conviction.

  Moreover, because only four active judges—Swygert, Kiley, Sprecher, and myself—were available to process a volume of cases that was considered a heavy workload for even the normal complement of eight judges, it was necessary to invite judges from other federal courts to sit with us on a regular basis. All of those special invitations required the approval of the chief justice.

  Burger’s approval of those requests provided me with the opportunity to form a close friendship with Justice Tom Clark, who was the most frequent visiting judge. When I appeared before Justice Clark in the Finley case, I respected him as an extremely competent jurist with excellent taste in bow ties. That respect grew into a real friendship when we were colleagues—albeit only temporarily—on the court of appeals. He always insisted on taking the most burdensome writing assignments, explaining that that was how he could be most helpful t
o us. As a retired justice, Tom did almost as much judicial work as he had as an active justice. I shall never forget Tom’s selfless and invaluable contribution during that particularly difficult period.

  In addition to administering the oath of office to the president on Inauguration Day, the chief justice customarily administers two oaths to each of his new colleagues. When I was sworn in, in 1975, I was told that the first (the so-called constitutional oath) entitles the new justice to exercise judicial power, and that the second (the statutory oath) entitles him or her to receive compensation. (I have since been advised that both oaths are necessary for both purposes.) In 1975, the constitutional oath was administered in the conference room with only justices present, and shortly thereafter the statutory oath was administered in the courtroom. Except for Byron White (whom I met at Pearl Harbor during World War II), my oldest and closest friend present at the first oath-taking was Tom Clark.

  The chief justice also oversees relationships between the federal courts and their sister institutions. He is, after all, not just the top federal judicial officer and the leader of the United States Supreme Court but also the chief justice of the United States. And, as time permits, he serves as principal host to the many foreign dignitaries who visit the Court.

  Other special responsibilities of the chief often surprise people. By an act of Congress, the chief justice is a member of the board of regents of the Smithsonian Institution, and by a tradition dating back to Roger Taney, the chief justice serves as chancellor and presides over that board, which includes the vice president, six members of Congress, and nine distinguished private citizens.

  Finally, the chief is, in effect, the CEO of the Supreme Court Building. Like any good executive, he has many able assistants, including the highly qualified counselor to the chief justice, the clerk of the court, the marshal, the librarian, and the reporter of decisions. Together, this team oversees the several hundred men and women who every day maintain the beautiful and historic Supreme Court Building, open it to crowds of tourists, and ensure that it serves lawyers and litigants.

  To sustain the high morale of the workforce at the Court, the chief presides at an annual awards ceremony before the end of each term. Cash awards are given to employees who have made exceptional contributions to the operation of the Court during the preceding year, and length-of-service medals are presented to employees who have multiples of five years of government service. Members of the exceptional Supreme Court police force are always well represented among the recipients of both kinds of awards. One of the traditions that has impressed me ever since my arrival as a law clerk in 1947 is the ability of every Supreme Court police officer to recognize a new employee within hours after he or she first reports for work; no identification badge is required to ensure a friendly greeting. Moreover, their ability to maintain order in the courtroom is demonstrated by the fact that disrespectful conduct almost never occurs; in the only instance that I can remember, the discourteous visitor was so promptly and silently removed that the proceeding continued without interruption.

  III

  Fred Vinson

  Fred M. Vinson, Chief Justice (1946–1953)

  FRED VINSON WAS BORN in 1890 in northeastern Kentucky; he graduated at the top of his class from Centre College, in the city of Danville. After returning to Lawrence County, he embarked on a career of public service. He became a city attorney, then served in the Army during World War I. In 1924, he was elected to Congress, where he remained for fourteen years. While there, he met and befriended Senator Harry Truman, ultimately becoming a confidant of and a participant in card games with the future president. President Roosevelt nominated him as a judge on the United States Court of Appeals for the District of Columbia Circuit in 1937. One of his colleagues on that court was Wiley B. Rutledge, who would later become a justice of the Supreme Court and my first boss after I finished law school.

  In 1943 Vinson resigned from the court of appeals to become the second director of the Office of Economic Stabilization—the agency that oversaw the rationing of items in short supply and imposed price and wage regulations on the wartime economy. (The first director of that agency was James F. Byrnes, who had been appointed to the Supreme Court a few months before the outbreak of World War II and had resigned from the Court on October 3, 1942, to accept the newly created position.) Vinson ran that agency during the war, and then President Truman selected him as his secretary of the treasury. In 1946, after Chief Justice Stone suffered his fatal cerebral hemorrhage, Truman nominated and the Senate by voice vote confirmed Vinson to be chief justice of the United States. He served until his death, on September 8, 1953, a few months before Brown v. Board of Education was to be reargued.

  Willard Pedrick, a young lawyer who had worked for Vinson as a law clerk on the court of appeals and in an executive capacity during the war, joined the faculty of Northwestern University Law School shortly after I became a student, in the fall of 1945. He was the source of the cordial relationship between Chief Justice Vinson and Northwestern that developed later.

  My relationship to Vinson had its roots in the spring of 1947, when I was finishing law school and Congress statutorily increased the funds available for the employment of law clerks. The increase enabled four associate justices—including Justice Rutledge—to hire two law clerks each year, while the chief justice hired three. The chief received the extra law clerk because his chambers reviewed all of the in forma pauperis petitions (cases in which the petitioner is too poor to incur the cost of printing relevant court documents) that indigent prisoners filed to challenge the constitutionality of their convictions. It was the job of the chief’s clerks to prepare memoranda summarizing each such petition and recommending an appropriate disposition. Each of the associate justices received a carbon copy of the original typed document; almost invariably, the chief’s clerk recommended “deny,” explaining that the prisoner had not exhausted his state remedies or that the claim had no merit.

  Before Vinson began employing a third clerk, the substantial burden that in forma pauperis petitions imposed might also have been alleviated by relieving the chief’s chambers of the responsibility to make a preliminary review of each in forma pauperis petition. When the same problem arose some years later—after the number of in forma pauperis petitions increased dramatically from 1946 levels—the latter course was followed, and the clerk’s office began making copies of all in forma pauperis filings and distributing them to all nine chambers for individual review. Given the state of copying technology in 1946, however, Congress apparently decided that an extra law clerk’s salary of $5,400 was a bargain in comparison to the cost of making nine copies of each one of those papers.

  When that statute was passed, Art Seder and I were coeditors of the law review at Northwestern with grade point averages that placed us at the top of the graduating class. We were then completing a three-year course of study in an accelerated program that consumed just two calendar years. The program was popular because most members of the class were recently discharged veterans of World War II eager to become productive participants in the civilian economy as soon as possible. Art, for example, had flown twenty-five missions over Germany as the pilot of a four-engine B-17 bomber, and I had spent most of the war at Pearl Harbor studying intercepted Japanese radio transmissions. I think there were only three women in the entire law school at that time.

  That spring, two of our professors—Willard Pedrick, whom I have already described, and Willard Wirtz, who had been on the faculty at the University of Iowa’s law school when Wiley Rutledge was the dean and who later became the secretary of labor in John F. Kennedy’s and Lyndon Johnson’s administrations—advised us that they had persuaded two Supreme Court justices to hire Northwestern graduates as law clerks. One prospect was for a one-year job beginning at the end of the summer with Justice Wiley Rutledge, and the other was for a two-year job with Chief Justice Vinson beginning a year later. They told us that they considered us equally qualified and that
they could not decide which of us to support for which clerkship. They delegated the decision to us. I won the coin flip and reported for duty with Justice Rutledge in September. Art began his work with the chief justice a year later. The other seven justices active during our tenures as clerks were Hugo Black, Stanley Reed, Felix Frankfurter, William Douglas, Frank Murphy, Robert Jackson, and Harold Burton.

  Wiley B. Rutledge, Associate Justice (1943–1949). 1947, oil on canvas by Harold Brett. Collection of the Supreme Court of the United States.

  My appraisal of Chief Justice Vinson is based on my own clerkship, what I learned later from Art, and, of course, information in the public domain. Fred Vinson was President Truman’s second appointee to the Court. Truman had previously appointed Harold Burton, who had served with him in the Senate, and he later appointed Sherman Minton, also a former colleague in the Senate, and Tom Clark, who was his attorney general when Art and I were in law school. Burton was the only Republican that Truman named. Because each of Truman’s nominees had previously worked closely with him in the Senate or the executive branch, it is fair to infer that the president’s firsthand knowledge about their characters and qualifications played a more important role in his selection than any recommendations made by lawyers, bar associations, or political sponsors.