Choosing a Chief Justice: Presidential Prerogative Or a Job for the Court?

Abstract

This Article contends that the United States Supreme Court's nine members should be permitted to decide for themselves who among them will serve as Chief Justice. The Article does not challenge the Constitution's procedure for filling vacancies on the Court; rather, it argues that, once the President and the Senate have staffed the Court with a full complement of Justices, those Justices should be allowed to choose their own leader. After pointing out the Constitution's silence on the matter, the Article argues that our practice of allowing the President to specify which Justice will be Chief is a vestige of a time when people believed the Chief Justice would be one of the President's most trusted aides. The Article identifies numerous reasons why the President- and Senate-centered selection practice should be changed.

Keywords: chief justice, supreme court, appointment

JEL Classification: K19, K39, K49