Testing the Influence of a Chief Justice:

A couple of weeks ago I suggested a research project on using Rehnquist's periodic absences from the bench this year as an opportunity to test the influence of the Chief Justice by comparing results in cases over which Rehnquist presided versus those over which Stevens presided as acting Chief to see whether there is any systematic differences in the outcomes depending on the presiding Chief.

Professor Frank Cross of Texas has decided to take up the challenge and is going to do some empirical work along these lines. The first step is to try to determine the exact dates and cases over which Stevens presided during the past term and those arguments over which Rehnquist presided. Does anyone have that information, or does anyone know where that information can be found and coded easily? This seems like something that an appellate shop somewhere may have collected already if they are willing to share it.

If you have any Comments you can post them here or contact Frank directly at University of Texas.

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SCOTUSblog is probably your best bet.
8.17.2005 2:59pm
frankcross (mail):
Thanks, Todd. The SCOTUSblog folks have been helpful, but they have only rough dates for the Rehnquist absence.
8.17.2005 4:23pm
arbitraryaardvark (mail) (www):
Maybe I'm pointing out the obvious, but there's a big difference between 'the boss isn't here today' and 'we have a new boss.' It is my ill-informed sense that former CJ Burger was an activist chief justice, using his powers as chief for any tactical advantage that could provide, while Rehnquist is more neutral. Maybe some of the scholars here can shed light on the different styles of the sundry chiefs down through the years. If there is a measurable effect of Stevens as acting chief, it is only a shadow of what we would see with a new chief altogether. I anticipate a full recovery by Rehnquist, outlasting the Bush administration if not the Bush dynasty, but would anyone care to speculate on Roberts' chances of promotion to chief if a vacancy comes up?
8.17.2005 5:19pm
James Carty (mail):
Here's my contribution. I argued, on behalf of the taxpayer Respondent, Banks v. Commissioner of Internal Revenue, No. 03-892 (involving the tax treatment, to a discrimination plaintiff, of the attorney contingent fee portion of a recovery). This case was argued on Monday, November 1, 2004, which is the FIRST day last term which CJ Rehnquist did not appear for oral argument. (Justice Stevens presided; also, ours was the FIRST case to be heard that day).

Unfortunately, the Court ruled 8-0 in favor of the IRS, reversing the Sixth Circuit. (Fortunately, for taxpayers, the president, a WEEK before oral argument, signed into law changes in the Internal Revenue Code which, going forward, provide relief on this issue to taxpayers.). Needless to say, I have to admit that it is unlikely at best that the outcome would have been different had the CJ presided.
8.18.2005 2:36am
frankcross (mail):
Thanks, James, that's what I need, the first day of missed oral argument. Anybody know for certain the first day of his return?

I'm using oral argument as a cue for voting in conference and opinion assignment, because I assume I can't get direct info on the latter. But if anybody has insight there, that would be helpful.
8.18.2005 10:33am
According to this AP article, March 21, 2005 was the first day the Chief was back on the bench for oral argument.
8.18.2005 10:53am
frankcross (mail):
Volokh Conspiracy is very widely read. I've gotten all the information I sought. Thanks, and I would be happy to take any other suggestions you all might have.
8.18.2005 3:20pm
James Carty (mail):
One more thing, Prof. Cross, which may be important to your analysis. The day I argued Banks v. CIR (Nov. 1, 2004, Case No. 03-892, which, again, was the first argument on the first day CJ Rehnquist was absent from the bench last Court term), Justice Stevens announced from the bench that, although the CJ was absent, he had or would read the briefs, and would be participating in the Court's decision.

HOWEVER, as things transpired, sometime before the Court issued its opinion (which, as I recall, was Jan. 31, 2005) the Court gave notice that CJ Rehnquist would not participate in the decision UNLESS he could break a tie.
8.18.2005 11:29pm