Roberts For Rehnquist: "Hurry-Up Offenses" Versus "Prevent Defenses" James A. Davids J.D. Duke University School of Law President-Elect, Christian Legal Society Assistant Dean, Robertson School of Government, Regent University September 9, 2005

William Rehnquist’s death brings to a close the longest term of Chief Justice in more than 100 years.  He served the nation as Chief Justice longer than all but three Chiefs, and together with his 14 years on the Court as an Associate Judge, he served longer than 101 of the 108 Chief and Associate Justices confirmed to the Supreme Court.  Because of long service such as Chief Justice Rehnquist’s, selecting a Chief Justice is a rare event.  In fact, although President Bush is our 43rd President, only 14 other Presidents have picked a Supreme Court Chief Justice. 

President Bush wasted no time nominating John Roberts to be Chief Justice of the Supreme Court.  In doing so, he avoided a short-term problem, but posed an even bigger hurdle for the nominee who will eventually replace Justice Sandra O’Connor.

The power of the Chief Justice lies not in his vote (he is, after all, only one of nine votes), but in his ability to select which Justice will write the lead opinion in the case before the Court.  To be more exact, if the Chief is in the majority in a case, the Chief can assign whichever Justice joins him in the majority to write the majority opinion.  This is very important since the majority opinion is the one all other courts must follow.  The majority opinion, in effect, is the rule of law. 

This ability to select is a significant power, since Justices can differ as to the reasons they voted in a case, and also differ as to the strength of their position.  Justice Thomas, for instance, believes that refusing public aid to parochial schools is tantamount to Catholic bigotry, whereas Justice Kennedy (who also votes for equal treatment for private schools) is less adamant.  Choosing Kennedy to write an opinion on the issue of public aid to private schools, therefore, would result in a different tone and opinion than one written by Justice Thomas.

With the death of the Chief, the power to assign opinions in cases in which he is in the majority falls to the Justice with the greatest seniority, who is John Paul Stevens.  Justice Stevens, although nominated by a Republican, is far more likely to vote with liberal Clinton appointees Justices Ruth Ginsburg or Stephen Breyer than with conservative Justices Antonin Scalia or Clarence Thomas.  Without conservative Chief Justice Rehnquist on the Court, the power to select authors of opinions would fall much more often upon Justice Stevens.

The threat of Stevens selecting the authors of majority opinions apparently was enough for the White House to switch Roberts from an Associate Justice position to Chief Justice.  With O’Connor’s promise to serve until replaced, she would return for perhaps most of the Court’s next session, and conservatives would at best keep what they have – a conservative Chief Justice and two Associate Justices (Scalia and Thomas), two non-conservative and non-liberal Associate Justices (O’Connor and Kennedy) and four liberal Associate Justices (Souter, Ginsburg, Breyer and Stevens).  Conservatives and Republicans argue, however, that this is hardly appropriate since Republicans control the White House and the Senate.

Retaining the status quo is certainly acceptable to the President’s opponents, who would like waiting until the next presidential election to alter significantly the make-up of the Court.  We should expect, therefore, that the President’s opponents will attempt to slow down replacing Justice O’Connor. 

Meanwhile, we march inexorably to the 2008 elections, when the voters may return the Democrats to power.  As we start a new pro-football season, don’t pay any particular attention to “hurry-up offenses” or “prevent defenses.”  If you miss them on Sundays, you can always watch them during the week on Capitol Hill.

CONTACT:    Dr. James Davids, Assistant Dean, (757) 226-4783, jameda2@regent.edu;
Baxter Ennis, Executive Director of Public & University Relations, (757) 226-4093, bennis@regent.edu