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WASHINGTON � In the weeks before he argued a case to the U.S. Supreme Court, John G. Roberts Jr. made a habit of writing his six or seven main arguments on index cards and then shuffling them every day or so. In that way, knowing how unpredictable the questioning from justices can be, Mr. Roberts prepared himself to make his points in every possible sequence, with smooth transitions from one assertion to the next. If, as expected, Judge Roberts, who now sits on the U.S. Court of Appeals for the District of Columbia, 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 Justice 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 Judge 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 Justice 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 Judge 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 Judge 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 Fourth Circuit � Judge 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 Judge Luttig, supporters also say, the genial Judge 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,” said Texas Solicitor General R. Ted Cruz, who, like Judge 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’ Mr. Cruz vividly recalled the day in 1995 when he and his fellow clerks asked Chief Justice Rehnquist who he thought was the best lawyer then practicing before the Court. John Roberts was the chief justice’s unhesitating reply. In 39 cases argued � he won 25 � the attorney 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,” he said in a 2000 interview. “If it did, I’d become impassioned.” Though he 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 Judge Roberts was nominated, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said he hoped President Bush would name someone from outside the “judicial monastery.” In those terms, Judge Roberts is not only a full-fledged monk, but he has spent half his life studying in its cloister � far more than most novitiates. Last week, Mr. Specter was singing the praises of Judge Roberts. Yet there are some Court experts who say Judge Roberts’ oral argument expertise will not do him much good inside the modern-day Court. “They don’t argue cases at conference,” said 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. Judge Roberts has already been compared with Justice Brennan in terms of personality, but not by anyone who knows them both. Justice Brennan was gregarious and instantly made guests feel like family; Judge Roberts’ friendliness, while obvious, is far more subdued. American University law professor Stephen Wermiel, Justice Brennan’s biographer, says the justice won over other justices not by his charm but by “offering a platform that was not as isolating and radical as what Rehnquist was offering.” That may be the key to Judge Roberts’ success, as well. His measured rhetoric, already evident from his two years as a judge on the U.S. Court of Appeals, may seem more appealing to Justices Kennedy and Souter, for example, than Justice Scalia’s strident tone or Justice Clarence Thomas’ solitary trailblazing. Some Court scholars think Justices Scalia and Thomas at times have scared off Justices 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, Justices O’Connor and Kennedy, according to several former clerks, never had a close relationship. Judge Roberts’ style may pave the way for a closer relationship with Justice 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 Justice Kennedy will respond more favorably to Judge Roberts than he does to Justice 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,” the clerk said. “Kennedy likes moderate-sounding stuff.” Another former clerk, however, said that after 17 years on the Court, Justice Kennedy goes by his own lights and is not likely to be pushed rightward by Judge Roberts’ affability. “Justice Kennedy is his own person,” said 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. Mr. Lazarus thinks the new composition of the Court will have a more indirect impact on Justice Kennedy. “O’Connor’s departure takes a target away from Scalia,” said Mr. Lazarus, referring to Justice Scalia’s sometimes-withering attacks on Justice O’Connor’s equivocation. “I don’t see Scalia going after Roberts, though. Scalia’s new target will be Kennedy.” Justice Souter, too, might be receptive to Judge 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,” said Mr. Wermiel. Influencing Breyer Judge Roberts’ arrival would also have an influence on Justice Breyer. In the past five years or so, Justices Breyer and O’Connor became especially close, as Justice Breyer tried more and more to win Justice O’Connor’s vote with pragmatic, case-specific decisions. With Justice O’Connor gone, the Court’s center might shift to the right, and Justice Breyer might try to work his centrist will on Judge Roberts, should he be confirmed. More so than Justices Brennan and White, the justice with whom it is easiest to compare Judge Roberts is Chief Justice Rehnquist, Judge Roberts’ one-time boss and mentor. Judge Roberts could be the first former Supreme Court clerk to serve on the Court with his justice. “They share a lot in common,” said Mr. Cruz. “They are both indisputably brilliant, unusually down-to-earth, and remarkably humble for all their abilities.” Given Chief Justice Rehnquist’s advancing years � he is 80 � and his bout with thyroid cancer, Judge Roberts’ first term serving at the chief justice’s side could be particularly poignant. “It’s got to be emotionally wrenching,” said Mr. Lazarus. “He clerked for Rehnquist in the man’s heyday, and now he will be there in his twilight days. A bittersweet time.” � Tony Mauro covers the U.S. Supreme Court for ALM, the parent company of the Law Journal. He can be reached at [email protected] .

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