Does the Chief Justice Have Too Much Power?

John Roberts appointed every judge on the secretive and influential FISA court. Maybe it's time to spread around the authority.
Brendan Smialowski/Reuters


John Roberts has a way of inserting himself into almost every political setting. He upstaged Barack Obama at his first Inauguration; he made his the most important single vote cast in the 2012 election; he has upended 2014 politics with his opinion gutting the Voting Act. Now it turns out he has assumed a key role in the War on Terror.

So it seems entirely reasonable for The New York Times's Linda Greenhouse to suggest that "we have given the chief justice -- any chief justice, not just this one -- too much to do."

The question is being raised now because recent leaks give us a disturbing look the secretive Foreign Intelligence Surveillance Court. The chief justice selects the 11 district judges who serve on this court; his discretion is subject only to a few limits: the judges must come from at least seven appeals-court circuit, one must be a district judge of the District of Columbia, and no fewer than three must live within 20 miles of D.C.

The FISA panel was originally conceived as simply a mechanism to grant warrants for surveillance -- the equivalent of a magistrate who looks at an affidavit from a police officer and then orders a search or seizure. It's an important function, but pretty pedestrian (or as lawyers like to say, "ministerial").

Since 2007 or so, though, the FISA Court has bulked up like A-Rod. The New York Times revealed that it has developed a complex case law interpreting the Surveillance Act, the Fourth Amendment, and its own jurisdiction. That case law, like the orders the court issues, like the briefs the government files, and like the legal opinions from which those briefs flow, of course, secret.

An entire shadow Constitution may be growing up, parsed by a court appointed by John Roberts. That secret growth seems more alarming because of reports that the chief justice's picks for the secret court have been skewed toward the Republican side of the bench.

The chief appoints the members of many specialized judicial panels. But the FISA Court has morphed into a very powerful institution. Perhaps it's time the change the way it is constituted.

Professor Stephen Vladeck, a separation of powers specialist who teaches at American University School of Law, argues that when FISA was passed it made sense to give the power of appointment to the Chief -- but that "what the FISA Court does has changed over time." The degree of programmatic responsibility it has taken on, he says, may be unprecedented.

For that reason, it may make sense to spread the responsibility for the makeup of the FISA courts. Vladeck suggests either creating a stand-alone specialized FISA Court, appointed by the President and confirmed by the Senate, or confining the present FISA Court to warrant approval, with a transfer of the more complex oversight of surveillance programs to panels of an existing court, perhaps one like the D.C. Circuit, which has experience in the intricacies of administrative law.

Should the chief keep the appointment power? Perhaps we can learn from recent history. In 1983, Chief Justice Warren Burger lobbied Congress to create a new national Court of Appeals, made up of already-confirmed sitting judges. In different proposals, the power of appointment would either be held by the chief alone, or by the Supreme Court as a whole.

Officials at the Reagan White House had little use for the idea. Appointment by the chief justice, or by the Court as a whole, one wrote, "constitutes an unprecedented infringement on the President's appointment power . . . ." Appointment by the chief alone would be likely to produce a solidly conservative court, but "liberal members of Congress, the courts, and the bar are likely to object." Even worse, if Democratic nominees were named, they might reverse the judgments of Reagan appointees on the lower courts.

"[T]he new court would be qualitatively different" than specialized panels appointed by the Chief, "and its members would have significantly great powers than regular circuit judges." If the project went forward, "we should scrupulously guard the President's appointment powers."

It was a shrewd assessment. The power to name judges to any important court is an important one, one that involves the president's power, the appearance of integrity and impartiality on the nation's courts, and the crucial issue of which judges get the last word on important questions.

The author of those memos was 28 years old when he opposed the new court. Today he is the Chief Justice of the United States.

Jump to comments
Presented by

Jennie Rothenberg Gritz is The Atlantic's digital features editor. More

Jennie Rothenberg Gritz, an Atlantic senior editor, began her association with the magazine in 2002, shortly after graduating from the UC Berkeley Graduate School of Journalism. She joined the staff full time in January 2006. Before coming to The Atlantic, Jennie was senior editor at Moment, a national magazine founded by Elie Wiesel.

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

Get Today's Top Stories in Your Inbox (preview)

The Death of Film: After Hollywood Goes Digital, What Happens to Movies?

You'll never hear the whirring sound of a projector again.

Elsewhere on the web

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus


The Death of Film

You'll never hear the whirring sound of a projector again.


How to Hunt With Poison Darts

A Borneo hunter explains one of his tribe's oldest customs: the art of the blowpipe


A Delightful, Pixar-Inspired Cartoon

An action figure and his reluctant sidekick trek across a kitchen in search of treasure.


I Am an Undocumented Immigrant

"I look like a typical young American."


Why Did I Study Physics?

Using hand-drawn cartoons to explain an academic passion



More in National

Just In