You would be hard pressed to find a Chief Justice of the Supreme Court who came into the job with a more sparse resumé than John Roberts does.
[UPDATE: added explanation of Chief's need for leadership experience]
As Chief Justice, Roberts is being asked to do much more than just make legal decisions. If deciding cases were all he would do, he should be made Associate Justice.
The Chief not only leads the eight other Justices, he is the chief executive of the entire Judicial Branch of the government. In distinguishing between the Associates and the Chief, it is leadership that is most crucial, not legal training. Experience as a President, Governor, Senator, or Cabinet Member is very useful. So would be experience as Chief Judge of an appellate court. I do not think it is coincidence that 11 of 16 Chiefs have held one or more such positions.
If you don't have that leadership experience, the next best thing is having been as close as possible to the required position. At least with time as an Associate Justice, you have worked closely with the Chief. As an Appeals Court judge, you don't get that close, but at least with many years in the position you can build up some experience with how the Judicial Branch is run.
Roberts has none of that. Saying he is qualified because he has argued before the Court is like saying I am qualified to run Apple Computer because I use their products.
Of the 16 people who have served as Chief Justice, 14 of them have had at least one of the following on their resumé before they took the job.
- Associate Justice of the Supreme Court
- At least 10 years on the Court of Appeals
- Cabinet member
- Governor
- Framer of the Constitution
Roberts has none of these.
William Rehnquist had been on the Supreme Court for 14 years before he moved up to Chief. The five Chiefs who had previously served on the Court averaged more than 10 years as Associate Justices.
Warren Burger spent 13 years on the Courts of Appeals.
Earl Warren had been Governor of California for 10 years. Charles Hughes and Salmon P. Chase also served as Governors of States before becoming Chief Justice. William Howard Taft also served as Governor-General of the Philippines while it was under U.S. control.
Taft also fits the above categories by having been a Cabinet member (Secretary of War), but he trumped that by being nothing less than President of the United States.
The first three Chiefs did not have much opportunity to serve the United States government before they became Chief, but they were all involved in writing the Constitution.
To find a Chief Justice with as weak a resumé as Roberts', we need to go back more than a hundred years to Morrison Waite and Melville Fuller.
Waite was appointed by President Grant. Following the Civil War, the list of loyal judges was somewhat short. To top that off, the first four choices by Grant all turned down the job. Waite won confirmation with significant opposition. Waite was resented by his Supreme Court colleagues, some of whom thought they deserved the job.
Still, Waite was not a nobody. He had served on the Ohio Senate. He represented the United States before the Geneva Arbitration of Civil War claims. He presided over the Ohio Constitutional Convention.
Waite was followed by Melville Fuller. Fuller was appointed by President Cleveland, but again he was not the first choice. Fuller's resumé included serving on the Illinois House of Representatives. Fuller had been active in the Democratic Party having attended four national Conventions, and he was a friend of Cleveland. It has been suggested that Fuller was appointed in an unsuccessful bid for Cleveland to win Illinois in the next election. Justice Frankfurter said of Fuller, that "he was a lawyer, and a lawyer only... I think Fuller was the only man, with the exception of his immediate predecessor, who came to the chief justiceship so wholly without a record in official public life." Fuller was confirmed, but with a very large vote in opposition.
So now we have John Roberts nominated to this post. Roberts has served for just two years on the Court of Appeals. His resumé reads much like that of Fuller and Waite, being dominated by private practice. He never served in the Cabinet, but he has served close to top people. He was associate counsel to the President. He was Special Assistant to the Attorney General. He was Principal Deputy Solicitor General. He clerked for then-Associate Justice Rehnquist. Is being an assistant to a leader sufficient leadership experience?
When we think of great Supreme Court Chiefs, I doubt that the names Waite and Fuller come to mind. Roberts may be every bit as qualified as those two chiefs, but could we do better?
Chief Justice | Significant Prior Experience |
Rehnquist | 14 years on the Supreme Court |
Burger | 13 years on the Court of Appeals |
Warren | 10 years as Governor of California |
Vinson | Secretary of the Treasury, Chief Judge on Emergency Court of Appeals |
Stone | 16 years on the Supreme Court, Attorney General |
Hughes | 5 years on the Supreme Court, Secretary of State, Governor of New York |
Taft | President, Secretary of War, Governor-General of the Philippines, Court of Appeals |
White | 16 years on the Supreme Court, US Senator |
Fuller | |
Waite | |
Chase | Secretary of Treasury, Governor of Ohio, US Senator |
Taney | Attorney General |
Marshall | Secretary of State |
Ellsworth | Framer of Constitution, US Senator |
Rutledge | 1 years on the Supreme Court, signer of Constitution |
Jay | Framer of Constitution, Author of Federalist Papers, Secretary of Foreign Affairs, President of Continental Congress |