Saturday, September 10, 2005

If confirmed as chief justice, John G. Roberts Jr.’s most important duty will be assigning cases to the eight associate Supreme Court justices, but he’ll also take over vast extracurricular duties and powers as the nation’s top judge.

There is a reason his official title will be “chief justice of the United States” rather than just chief justice of the Supreme Court, said Richard Carelli, a spokesman for the administrative arm of the federal judiciary.

Perhaps most critically, the chief justice is by statute the head of the Judicial Conference — essentially the policy-making wing of the federal court system — and has exclusive appointment power of judges on the Foreign Intelligence Surveillance Court.

The highly secretive court — established in 1978 by the Foreign Intelligence Surveillance Act (FISA) — presides over classified applications by federal law enforcement authorities seeking permission to conduct electronic surveillance anywhere within the United States.

Michael A. Vatis, a New York appellate lawyer who clerked for now-deceased Supreme Court Justice Thurgood Marshall and for Justice Ruth Bader Ginsburg when she was a lower-court judge, noted the level of power the chief justice has over the FISA court, which has drawn criticism from civil liberties advocates in recent years.

“Especially given how much FISA is used nowadays in the wake of September 11 and given the importance of the FISA court’s interpretation of the rules as amended by the [2001] Patriot Act … he can essentially stack that court with the sorts of judges he wants,” Mr. Vatis said.

But he and other legal specialists generally agree that the most prominent extracurricular activity of a chief justice is his position as head of the Judicial Conference. “He really is the face of the federal judiciary,” said Carl W. Tobias of the University of Richmond School of Law.

The 27 federal judges and 20 standing committees that make up the conference set rules for the nation’s courts on matters including courthouse security and judicial salaries.

The chief justice presides over the conference’s two annual meetings, one in March and one in September, and has the power to handpick the judges in charge of each committee.

More importantly, the conference engages in regular lobbying of Congress, something the late Chief Justice William H. Rehnquist often did during his 19-year reign, Mr. Tobias said.

Chief Justice Rehnquist had a reputation for consistently leaning on lawmakers to “allow courts to rule without pressure from Congress,” he said. “Rehnquist was a staunch defender of judicial independence.”

Mr. Vatis said he thinks Judge Roberts would “do very well” as head of the conference because his experience as a White House and Justice Department lawyer arms him with “an understanding of the broader government and judiciary.”

In addition to the FISA court and Judicial Conference roles, the chief justice has a number of other duties and honors. The chief justice is designated as a member of the Smithsonian Institution, named to the Board of Trustees of the National Gallery of Art and the Joseph H. Hirshhorn Museum and Sculpture Garden.

But the central distinction between the chief justice and the eight associate justices remains his power to designate opinion-writing assignments to the associates when he’s in the majority, court observers say.

“That is often crucial in close cases to keeping a majority together, because justices sometimes need to see how an opinion writes,” Mr. Vatis said. “Once they see it in writing, they might think, ‘well, actually, I think I want to vote the other way,’ and that could turn a decision in the opposite direction.”

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