The Judicial Bookshelf

Abstract

The Judicial Bookshelf D. GRIER STEPHENSON, JR. The year 2005 will remain notable in Supreme Court history. A nearly unprecedented period of stability in the Court’s membership came to an end. The nation witnessed the appointment ofa new ChiefJustice, and, for the first time since 1971, a President and the Senate confronted the momentous responsibilities of two simultaneous vacancies to fill. Events began to unfold on July 1, 2005, when Justice Sandra Day O’Connor notified President George W. Bush of her retirement, which would become “effective upon the nom­ ination and confirmation of my successor.”1 Nominated by President Ronald Reagan on July 7, 1981, and sworn in by Chief Justice Warren Burger on September 26, 1981, Jus­ tice O’Connor had served the equivalent ofsix presidential terms. On July 19, 2005, President George W. Bush announced his choice of John Glover Roberts, Jr., for the O’Connor seat. A judge on the United States Court of Appeals for the District of Columbia Circuit since May 2003, Roberts had previously distinguished himself as a member ofthe Supreme Court bar both in and out of government service.2 On Septem­ ber 3, however, shortly before hearings were to begin in the Senate Judiciary Committee on his nomination, Chief Justice William H. Rehnquist losthis struggle withthyroid cancer. Sworn in as head ofthe Courton September26, 1986, Rehnquist was only the third ChiefJus­ tice to have been selected from the ranks ofthe Associate Justices, having initially joined the Bench on January 7,1972. His tenure ofnearly nineteen years as Chief ranked him fourth on the all-time list, behind John Marshall’s thirtyfour years, Roger B. Taney’s twenty-eight, and Melville W. Fuller’s twenty-two.3 The death of the sixteenth Chief Jus­ tice marked the first change in the Court’s membership since the retirement of Justice Harry A. Blackmun and the arrival of Jus­ tice Stephen G. Breyer on August 3, in 1994. At no other time since Congress last set the roster of the Court at nine, in 1869, had so many years passed without a vacancy. Indeed, the 1994-2005 period came within days of equaling the longest such expanse on record: that between Justice Joseph Story’s ar­ rival on February 3, 1812 and Justice Henry Brockholst Livingston’s death on March 18, 1823.4 Thus for many Americans, the process of filling a Supreme Court seat was a dim THE JUDICIAL BOOKSHELF 299 memory at best. For others it would be an entirely new experience: Most college fresh­ men in the fall of2005 would have been seven years old during Justice Breyer’s confirmation proceedings. As President Bush surely realized, ap­ pointment of a Chief Justice is a rare occur­ rence. There had been forty-three Presidents, but, at the time of Rehnquist’s death, only sixteen Chief Justices. Similarly, aside from George Washington, who picked three Chief Justices (John Jay, John Rutledge, and Oliver Ellsworth), no President—not even Franklin D. Roosevelt—has named more than one. The contrast is significant substantively as well as statistically. During the thirty-four years Mar­ shall occupied the center chair, for example, there were six Presidents, and it was Marshall’s tenure that perhaps led former President John Quincy Adams to rate the office ofChiefJus­ tice as more important than that of President. That was “because the power of constructing the law is almost equivalent to the power of enacting it. The office of Chief Justice of the Supreme Court is held for life, that ofthe Pres­ ident of the United States only for four, or at most for eight, years. The office of ChiefJus­ tice requires a mind of energy sufficient to in­ fluence generally the minds of a majority of his associates; to accommodate his judgment to theirs, or theirs to his own; ajudgment also capable ofbiding the test oftime and ofgiving satisfaction to the public.”5 William Howard Taft might have agreed. “Presidents come and go,” remarked the former President and future Chief Justice in 1916, “but the Court goes on forever.”6 Accordingly, President Bushpromptly an­ nounced on September 5 that he would nomi­ nate Roberts for the ChiefJusticeship. The de­ cision...