X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When Earl Warren arrived at the Supreme Court to be sworn in as chief justice in October 1953, he donned a hastily borrowed robe. It belonged to a taller man, and as Warren walked toward the center seat, he tripped on the hem, literally stumbling his way onto the bench. It was, he later wrote, “the most awesome and loneliest day of my public career.” John Roberts Jr. already has a robe that fits him from his two years as an appeals court judge, and he will presumably wear that one � with or without the added gold stripes favored by his predecessor � at his ceremonial investiture as chief justice at the Court on Oct. 3, just before arguments begin in the new term. But the awe, and probably the loneliness, will be the same. Roberts takes on the duties of running the Supreme Court and the judicial branch without a moment of apprenticeship. He will also preside over a docket full of complex cases, some of which could reveal what Senate Democrats could not pry out of Roberts during his confirmation hearing: how much his heart figures into his jurisprudence. On Wednesday, for example, the Court will hear Gonzales v. Oregon, which centers on whether a state may allow doctors to prescribe death-hastening drugs to terminally ill patients when those drugs are prohibited by the federal Controlled Substances Act. Issues of federalism and compassion � both touched on in Roberts’ hearings � will clash before his eyes. On Nov. 30, Ayotte v. Planned Parenthood will be argued, the first abortion case to reach the Court in five years, and early next year a series of First Amendment cases that deal with campaign finance reform are scheduled to be heard. But first, Roberts has to get through his debut day. At 10:30 a.m. on Monday, Roberts will call the first case of the term and welcome veteran advocate and friend Carter Phillips of Sidley Austin Brown & Wood to the podium, the first lawyer to address him as “Mr. Chief Justice.” In Phillips’ half-hour before the Court, Roberts may ask his first question � or not. “If I were in his shoes, I would be reluctant to ask questions,” says Stanford Law School professor Alan Morrison. “He hasn’t done the homework.” By 11, if Phillips speaks after his red light goes on, signaling his time is up, he fully expects Roberts to cut him off midsentence or midword, just as the late William Rehnquist would sometimes do. “I’d be shocked if he doesn’t do it the same way his former boss did,” says Phillips. In other ways, though, Phillips does not expect Roberts will imitate Rehnquist. For example, with irritation in his voice, Rehnquist would sometimes tell overeager justices � Antonin Scalia and Ruth Bader Ginsburg come to mind � to let lawyers finish their answers before being asked another question. “I don’t see that happening for at least a year,” says Phillips. On Wednesday afternoon, behind closed doors, Roberts’ eight colleagues will get their first look at how he runs Court conferences and assigns cases. Will he encourage more discussion of pending cases than Rehnquist allowed? Will he keep a mundane “dog” case for himself to write, or will he use his authority as chief to assign it to another justice? And by Friday, Court employees will have had a chance to take the measure of Roberts. Is he friendly to the elevator operators? Will he move quickly to bring new personnel to the Court or keep longtime staffers on board? What about his law clerks? Will he assign them to the cert pool (which divides up incoming cases and, in effect, puts the fate of each case in the hands of the clerk who summarizes it)? Or will he create two pools, as some have suggested, so at least two clerks look at each case?
RELATED POINTS OF VIEW GONZALES V. OREGON
Oregon Lets Dying Choose a Gentle ExitWhy So Quick to Help Disabled Die?

All these decisions, and countless more, will be made in a fishbowl, given the intense interest focused on the first new justice on the Court in 11 years and on the youngest chief justice in more than two centuries. “This early period is not unlike the installation of a new pope,” says Thomas Baker, a law professor at Florida International University who was an administrative assistant to Rehnquist when he became chief justice in 1986. “Everyone will be watching and waiting for signals and symbols of his style of leadership.” Roberts’ first priority should be to establish bonds with his colleagues, Baker says. “The great lubricant of the Supreme Court judicial machinery is personal regard and respect. Gain the respect and regard of your colleagues and you are on the way to going down in history as a great chief justice.” Roberts will be the youngest justice on the Court, yet with the instant seniority that goes with being chief justice. “Because of his deep respect for the court and his sense of humor, he will fare better than the usual younger person facing his elders,” predicts University of Kansas professor Larry Wrightsman, author of a forthcoming book on the psychology of the Supreme Court. Roberts is well known to most justices, but now their relationship will be entirely new, and Roberts has much to learn. In his early months, Warren relied on Justice Hugo Black for institutional memory, and Roberts could lean on Justice John Paul Stevens, who has been on the high court for 30 years. And though Roberts is a veteran of federal appellate law as both a former practitioner and as a judge on the D.C. Circuit, Morrison asserts, “there are a huge number of issues he hasn’t seen before.” As an example, Morrison notes, “he hasn’t seen many state habeas corpus cases in the D.C. Circuit, that’s for sure.” But Roberts’ newness doesn’t mean he will be forced to go slowly on every possible change. Some moves are his own to make, such as dealing quickly with possible recusal issues. According to the financial disclosure form he submitted to the Senate, Roberts owns more than $200,000 in Time Warner stock and has considerable holdings in other media and pharmaceutical companies, which might cause him to recuse early and often. Mostly without success, Morrison used to urge Justice Sandra Day O’Connor to divest her telecommunications stocks that caused her to recuse hundreds of times during her tenure. He thinks Roberts should do the same. There are few telecommunications issues that would not affect Time Warner, he points out, even if it is not a direct party. Monroe Freedman, a judicial ethics expert at Hofstra University, also thinks, for reasons of transparency, it would be healthy for Roberts to establish a policy of announcing his reasons for recusal. Currently, justices almost always decline to specify their reasons, leaving litigants and others scratching their heads if a financial or family conflict is not obvious. Another reform that would be easy for Roberts to institute quickly would be to regularize the public release of audio tapes of Supreme Court oral arguments. Jerry Goldman, a Northwestern University professor who posts oral-argument tapes on his Oyez Project Web site, would love to see real-time broadcasts, and others in the media dream of the day when the Court will allow cameras, as well. But for now, Goldman says, it would be “an easy small step” for the Court to release the audio at the same time that written transcripts of arguments are made available on the Court’s Web site � usually around 10 days after argument. The Court’s recent announcement that it is recording oral arguments digitally rather than reel to reel would make it feasible, Goldman says. “It’s no fun just reading the libretto. People want to hear the opera,” he adds. Under current practices, audiotapes are not made public until months after argument, with rare exceptions. Creating a second pool of clerks, a move that would have to be voted on by the entire Court, would also not take long to set up, Court veterans say. Roberts, like many other Supreme Court practitioners, has been critical of the cert pool, voicing concern that it gives clerks too much power. Roberts was a clerk himself, but at a time when just five justices used the pool � guaranteeing that other eyes were scanning each petition. But today, every justice except Stevens makes use of the pooling arrangement, and even Stevens does not read all the petitions himself. “It’s tough explaining to your client that their case was never looked at by a single justice,” says Phillips. Another change that practitioners hope for is a return to the days when the Court allowed more friend-of-the-court advocates to participate in oral argument. Rehnquist preferred arguments with only one lawyer on each side, though the solicitor general and occasionally representatives of the states were allowed to argue. But when Roberts clerked at the Court, 25 years ago, Warren Burger was chief justice, and he more often allowed other kinds of participants to argue. Phillips, who clerked at the Court two years before Roberts, recalls watching arguments in the the case of Addington v. Texas in 1978. Joel Klein, now the chancellor of the New York City schools, argued on behalf of the American Psychiatric Association, which had filed a friend-of-the-court brief. Phillips says that Klein’s argument enriched the case, which involved standards for involuntary commitment to mental hospitals. “Some of the best arguments I saw were in those divided arguments,” says Phillips. “John may remember that too.” Nor would it take much doing to achieve a goal Roberts already endorsed during his confirmation hearings: increasing the number of cases the Court will hear. During his hearings, Roberts said that the Court could reasonably decide more than the 75 or 80 cases it rules on now. Business clients, in particular, want the Court to take more cases in order to resolve more quickly issues that now fester and cause years of confusion in the lower courts. How would Roberts accomplish that? Partly through jaw-boning, says Phillips. “He could tell the others, �We’re making a mistake here; we should take this case,’ ” he says. And a chief justice has a potent tool for persuasion: the assignment power. “The more interesting opinions could go to the justices who are accommodating and grant more cases,” says Phillips. “And the Longshore and Harbor Workers’ Compensation Act cases could go to the ones who aren’t.”


Tony Mauro can be contacted at [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.