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In the weeks before he argued a case to the Supreme Court, John Roberts Jr. made a habit of writing his six or seven main arguments on index cards and then shuffling the cards every day or so. In that way, knowing how unpredictable the questioning from justices can be, Roberts prepared himself to make his points in every possible sequence, with smooth transitions from one assertion to the next. If, as expected, Roberts is confirmed to replace retiring Justice Sandra Day O’Connor, he will have a new deck to shuffle and study: the eight other justices with whom he will serve for years or decades to come. How will he interact with them to maximum effect for the positions he takes? When he replaces the highly regarded O’Connor in the Court’s private deliberations, what will happen to the long-established alliances and personal relationships on the Court? The intense debate over Roberts’ nomination, announced July 19, has focused so far on his views — known, presumed, or inscrutable — on a range of hot-button issues. But before the views of junior Justice Roberts matter, he must be heard by eight other justices who are very accustomed to listening to O’Connor’s unique voice. Mastering the internal dynamics of the Court is a formidable and crucial challenge for any new justice. It would be especially daunting for Roberts, not only because the current Court has been unchanged for 11 years, but also because he would replace the Court’s fulcrum justice, which is one more reason why Bush administration supporters were crowing about the nomination of Roberts last week. More than any other short-list candidate — with the possible exception of J. Michael Luttig, a judge on the U.S. Court of Appeals for the 4th Circuit — Roberts knows the Court intimately and commands its immediate respect, based on his record as one of the best oral advocates the current justices have seen before them. And unlike the more hard-edged Luttig, supporters also say, the genial Roberts holds the promise of forging new alliances that could pull the likes of Justices Anthony Kennedy, Stephen Breyer, and even David Souter to the right, or at least to the conservative edge of the Court’s middle. “The impact of new justices on the dynamics of the Court depends in large part on their ability to make a compelling case for their views, and on the degree of credibility they have,” says Texas Solicitor General R. Ted Cruz, who, like Roberts, was a law clerk to Chief Justice William Rehnquist. “On both fronts, I expect Judge Roberts to have an immediate and significant impact.” ‘IMPASSIONED RHETORIC’ Cruz recalls vividly the day in 1995 when he and his fellow clerks asked Rehnquist who he thought was the best lawyer currently practicing before the Court. John Roberts was Rehnquist’s unhesitating reply. “For three young clerks that makes an impression.” In 39 cases argued — he won 25 — Roberts excelled at calmly reassuring the Court that he was asking the Court to take only small, non-threatening steps. That style suited his unassuming, soft-spoken nature, but he once confessed that he would change his style in an instant if it would win cases. “Impassioned rhetoric doesn’t work with the Supreme Court,” Roberts said in a 2000 interview. “If it did, I’d become impassioned.” Though Roberts used to deny tailoring his oral arguments to target individual justices, his knowledge of their predilections and bugaboos is encyclopedic. As a colleague, instead of an advocate, that knowledge will be indispensable. Before Roberts was nominated, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said he hoped President George W. Bush would name someone from outside the “judicial monastery.” In those terms, Roberts is not only a full-fledged monk, but he’s spent half his life studying in its cloister — far more than most novitiates. Last week, Specter was singing his praises. Yet there are some Court experts who say Roberts’ oral argument expertise won’t do him much good inside the modern-day Court. “They don’t argue cases at conference,” says one former Court clerk. “Kennedy and [Antonin] Scalia would say early on, ‘Wait, we need to discuss this,’ but Rehnquist would tell them, ‘This isn’t a debate society,’ so eventually they stopped asking. John’s oral argument skills won’t have much impact.” Gone too are the days of the late Justice William Brennan Jr., who by reputation would lobby his colleagues with a backslapping politician’s style. Roberts has already been compared with Brennan in terms of personality, but not by anyone who knows them both. Brennan was gregarious and instantly made guests feel like family; Roberts’ friendliness, while obvious, is far more subdued. American University law professor Stephen Wermiel, Brennan’s biographer, says Brennan won over other justices not by his charm but by “offering other justices a platform that was not as isolating and radical as what Rehnquist was offering.” That may be the key to Roberts’ success, as well. Roberts’ measured rhetoric, already evident from his two years as a judge on the U.S. Court of Appeals for the D.C. Circuit, may seem more appealing to Kennedy and Souter, for example, than Scalia’s strident tone or Clarence Thomas’ solitary trailblazing. Some Court scholars think Scalia and Thomas at times have scared off O’Connor, Kennedy, and Souter, driving them away from following their conservative instincts and toward more moderate results, as with the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey, in which they voted to uphold Roe v. Wade. NOT BEST FRIENDS By the same token, O’Connor and Kennedy, according to several former clerks, never had a close relationship. Roberts’ style may pave the way for a closer relationship with Kennedy, fans and Court experts say. “Kennedy in particular will be looking forward to Justice Roberts coming on to the Court,” says one former Court clerk. “They will be very comfortable with each other, whereas with O’Connor, Kennedy had really no personal interaction.” Another former clerk also believes that Kennedy will respond more favorably to Roberts than he does to Scalia’s “bull in a china shop” style. “If you have a nice guy who is hard-right, he might have more influence with Kennedy, especially if his opinions are written carefully,” this clerk says. “Kennedy likes moderate-sounding stuff.” Another former clerk, however, says that after 17 years on the Court, Kennedy goes by his own lights and is not likely to be pushed rightward by Roberts’ affability. “Justice Kennedy is his own person,” says Edward Lazarus, a former clerk to the late Supreme Court Justice Harry Blackmun and a partner at Akin Gump Strauss Hauer & Feld. “He writes in grand and sweeping terms, whereas Judge Roberts seems more like a Whizzer White.” He was referring to the late Justice Byron White, whose rhetoric was usually spare and unembellished. Lazarus thinks the new composition of the Court will have a more indirect impact on Kennedy. “O’Connor’s departure takes a target away from Scalia,” says Lazarus, referring to Scalia’s sometimes-withering attacks on O’Connor’s equivocation. “I don’t see Scalia going after Roberts, though. Scalia’s new target will be Kennedy.” Souter, too, might be receptive to Roberts’ less combative style. “Roberts’ warm, collegial nature makes me wonder whether he might have an impact on Souter, who is the least liberal of the liberal or moderate justices,” says law professor Wermiel. INFLUENCING BREYER Roberts’ arrival would also have an influence on Breyer. In the past five years or so, Breyer and O’Connor became especially close, as Breyer tried more and more to win O’Connor’s vote with pragmatic, case-specific decisions. With O’Connor gone, the Court’s center might shift to the right, and Breyer might try to work his centrist will on Roberts, should he be confirmed. More so than Brennan and White, the justice with whom it is easiest to compare Roberts is Rehnquist, Roberts’ one-time boss and mentor. Roberts could be the first former Supreme Court clerk to serve on the Court with his justice. “They share a lot in common,” says Cruz of Roberts and Rehnquist. “They are both indisputably brilliant, unusually down-to-earth, and remarkably humble for all their abilities.” Given Rehnquist’s advancing years — he is 80 — and his bout with thyroid cancer, Roberts’ first term serving at Rehnquist’s side could be particularly poignant. “It’s got to be emotionally wrenching,” says Lazarus. “He clerked for Rehnquist in the man’s heyday, and now he will be there in his twilight days. A bittersweet time.” Like the son of a favorite colleague, Roberts in his freshman term may benefit from the fondness other justices have for Rehnquist. With all these new dynamics, Roberts could well enjoy a charmed life in his early years on the Court. But what would Roberts do with his unusual freshman clout? Just how different he would be from O’Connor is an unanswered question that is driving much of the liberal anxiety about Roberts. In some ways, Roberts and O’Connor have markedly similar views on judging. At his 2003 confirmation hearings, Roberts said that as a result of his own review of Supreme Court decisions, “I don’t necessarily think that it’s the best approach to have an all-encompassing philosophy.” That formulation sounds a lot like O’Connor, who has also mocked what she sometimes has called, using capital letters, a “Grand Unified Theory” about the law. In a 1997 religious free speech case, O’Connor wrote, “When bedrock principles collide, they test the limits of categorical obstinacy and expose the flaws and dangers of a Grand Unified Theory that may turn out to be neither grand nor unified.” ‘THE HUMAN SIDE OF A CASE’ Adam Charnes, a former Kennedy clerk now with Kilpatrick Stockton, also thinks that Roberts, like O’Connor, would “see the human side of a case, not just the esoteric legal issue,” in part because of his private legal practice. “He was a lawyer for real clients just less than three years ago.” But others sharply disagree, pointing to cases such as Grutter v. Bollinger and Gratz v. Bollinger, the 2003 decisions in which O’Connor led the Court to uphold one kind of affirmative action program at the University of Michigan and strike down another. She took an almost legislative approach, citing the needs of American corporations and the military and specifying a sunset date of 25 years hence for the end of affirmative action. “Someone like Roberts would look for a more across-the-board rule,” says Temple University School of Law professor Craig Green. “He would say that if affirmative action is wrong, it’s wrong across the board.” Green adds that O’Connor, like her predecessor, Potter Stewart, often looked for pragmatic, compromise solutions to cases. “Her successor, John Roberts, is nothing like that,” says Green, who once worked in the solicitor general’s office, although not during the same time Roberts was there. “His winning positions will be based on logic and principle, not compromise.” Looking at other Roberts rulings, almost at random, also reveals the contrast with O’Connor. In a Feb. 1 D.C. Circuit case, United States v. Toms, Roberts unemotionally tore apart “entirely far-fetched” claims of ineffective assistance of counsel in a drug conspiracy defense. In the June Supreme Court case Rompilla v. Beard, O’Connor wrote a concurrence decrying defense lawyers’ failure to look up a case file from a prior conviction for a murder defendant. On a human level, Yale Law School professor Oona Hathaway, a former O’Connor clerk, believes Roberts and O’Connor are “more similar than different.” O’Connor, she says, is an affable colleague who has long been “interested in building community with all members of the Court,” just as Roberts appears inclined to do. But in terms of doctrine, Hathaway sees worrisome differences that warrant Senate scrutiny. O’Connor, in the 2004 enemy combatant cases, “applied some brakes” to executive branch power in wartime, while in the July 15 D.C. Circuit case Hamdan v. Rumsfeld, Roberts joined in an opinion far more deferential to presidential power. “One justice can have a humongous influence on the Court,” says Hathaway. “With Roberts, it depends on what kind of justice, what kind of conservative he ends up being. Exactly how far will he push the Court to the right? At this point, it’s hard to know.”
Tony Mauro can be contacted at [email protected].

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