Montana Lawyer October/November 2024

Understanding the Legacy of Americas Chief Justices

2024 Annual Meeting attendees were given a unique insight into the history and work of America’s chief justices from Chicago attorney and President of the National Conference of Bar President’s, Dan Cotter. Cotter, author of The Chief Justices: The Seventeen Men of the Center Seats , Their Courts and Their Times, was joined on stage by Professor Anna Conley of the Blewett School of Law at the University of Montana for a conversation intro duced by Montana State Law Librarian Franklin Runge. The Role and Legacy of Chief Justices Cotter captivated the audience

Left to right: Dan Cotter & Professor Anna Conley

with his insights into the leadership of the court and the unique responsibilities held by its chief justices, noting that while all jus tices have equal votes, "some justices are more equal than others." he highlighted the unique role of the chief justice in shaping the court’s legacy, particularly when it comes to building consensus on critical cases. Cotter and Conley discussed notable chief justices such as Earl Warren, whose leadership led to the unanimous Brown v. Board of Education decision, and Warren Burger, who excelled at admin istrative duties and reduced the number of cases the court heard, which contributed to his legacy as an efficient and effective leader of the judiciary. The Roberts Court and Current Challenges The conversation then shifted to the present, focusing on the legacy of the Roberts Court. While it may still be too early to define Chief Justice John Roberts' enduring legacy, Cotter ob served that Roberts has presided over several landmark decisions, including Citizens United . He emphasized that the composition of the court plays a crucial role in shaping a chief justice’s legacy. He referenced a quote from Justice William Brennan, who believed that the court should not be named after the chief justice but rather after every new associate justice who joins the bench. This reflects the dynamic and ever-changing nature of the court. Cotter highlighted the far-reaching impact of recent Supreme Court decisions: “The cases they take on now... are really just having much more magnitude of an impact on the way the nation may function going forward.”

Administrative Law and the Shadow Docket Cotter and Conley also addressed the rise of the Supreme Court’s "shadow docket," a term coined by University of Chicago Professor William Baud. The so-called “shadow docket,” had typi cally involved procedural matters, separate from the court’s “merit docket,” cases that are heard only after full briefing and argument. Cotter explained the implications of this increasing practice, not ing that some justices have expressed concern about the lack of transparency. In addition to the shadow docket, Cotter addressed cases related to administrative law, including Loper Bright Enterprises v. Raimondo , which overruled the long-standing Chevron doc trine of judicial deference to agency interpretations of ambiguous statutes. Cotter and Conley agreed that these cases signal a shift in how administrative agencies are challenged in the courts, poten tially leading to a wave of new litigation against regulatory bodies like the FTC and NLRB. As Cotter noted, “Anybody who's regulated is now challenging almost any administrative types of agency interpretations,” high lighting the seismic shifts taking place in administrative law. Conclusion The luncheon, which was sponsored by ABA Retirement Funds, was a highlight of the 2024 Annual Meeting. For those who were not able to make this year’s meeting, the 2025 Annual Meeting will take place in Helena, September 10-13, 2025.

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