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It’s not the Rehnquist Court anymore.Nearly six months into his tenure as chief justice, John Roberts Jr. has begun to make his mark on the Supreme Court, fostering a sense of harmony and triggering an outbreak of unanimity among justices unseen in recent years. Without showing any sign of compromising his conservative views, Roberts has nonetheless written three unanimous opinions himself so far and presided over a Court that was unanimous in 21 out of 29 signed rulings issued. Just as significant, only six concurring opinions have been written this term — a departure for justices long accustomed to writing separately to express even the slightest disgruntlement with the majority. Inside the Court, employees speak of a more accessible chief justice who eats lunch in the public cafeteria from time to time. His fellow justices — of all political stripes — have embraced Roberts, pointing to vastly different private conferences, in which they are able to speak at greater length about pending cases than William Rehnquist ever allowed. In recent weeks, Roberts, with an easy, telegenic style, has also stepped up to his public role with a gusto unlike that of his sometimes-retiring predecessor. On March 6, Roberts paid homage to retired Justice Sandra Day O’Connor at a ceremony sponsored by the National Association of Women Judges, describing himself as the association’s newest member. Two days later, he walked out arm in arm with Nancy Reagan as he made his first major public address as chief justice at the Reagan Library in California. This week, Roberts tackles the other big piece of his job, presiding over his first meeting of the Judicial Conference, the policy-making arm of the federal judiciary. There he may also announce his replacement for Leonidas Ralph Mecham, the longtime director of the Administrative Office of the U.S. Courts. Roberts’ choice for director, who serves at the pleasure of the chief justice, faces the task of repairing testy relationships between the federal courts and Congress. This early in the term it is hard to discern whether Roberts’ initial successes result from his colleagues giving him something of a honeymoon, or whether they are feeling a sense of solidarity after a difficult year dealing with Rehnquist’s ill health and death, as well as the rough spectacle of the confirmation process for both Roberts and Samuel Alito Jr. Then, too, the cases that are decided early in the term are sometimes the easiest and are less prone to attract dissents. But none of those factors seem to fully explain the increased harmony on the Court, suggesting instead that Roberts is working hard to achieve it — as he promised to do during his confirmation hearings. In a talk before University of Alabama law students last week, Justice Stephen Breyer acknowledged, “Whether unconsciously or not, people are trying to get more agreement.” Breyer said the atmosphere at the Court is “a little more relaxed” and added, according to the Associated Press, “If we are being a little more unanimous, it’s a good sign.” Roy Englert Jr. of Robbins, Russell, Englert, Orseck & Untereiner doubts that other justices are folding their cards and softening strongly held views just to give Roberts a honeymoon. Rather, he guesses that, as a recent advocate in private practice and as a former appeals court judge, Roberts can persuade justices not to write separately so often. “He can discuss with them what their handiwork means to those who must apply it — both practicing lawyers and lower courts. So he can say that there are some consequences of frequent dissents and concurrences.” Also, as one of the best advocates before the Court in the modern era, Roberts knows better than most how to attract the votes of his new colleagues, one by one. “There’s a family resemblance between a brief that is trying to persuade the Court and an opinion that reflects the views of the Court,” says Thomas Baker, a professor at Florida International University College of Law who was Rehnquist’s first administrative assistant as chief justice. “Someone as able as Roberts can listen carefully to his colleagues and can build and craft an opinion that brings and keeps his colleagues in the fold.” Rehnquist, by contrast, became chief justice after spending years as an associate justice who dissented often, Baker says. As a result, “he didn’t mind concurrences and dissents so much.” Rehnquist also discouraged debate during the Court’s conferences, leaving colleagues less informed about one another’s views. By allowing more discussion, Roberts may help them shape their opinions in a more accommodating way from the start. Off the bench, Roberts’ colleagues have indicated they are happy with the new chief justice, says former Solicitor General Theodore Olson. “One of the justices told me, �I think that he could be one of our greatest chief justices,’ ” Olson says, declining to name names. “ Another said, �I think he’s going to be great; he’s been wonderful so far.’ ” Olson, a partner at Gibson Dunn & Crutcher, adds that justices speak about Roberts “ as if he was born to be chief justice of the United States, much like Tiger Woods was born to be on a golf course.” CONSERVATIVE COURSE Not everyone is ready to hail the new mood at the Court. “There’s no question that he is charming and gracious,” says Elliot Mincberg, legal director of People For the American Way, which opposed Roberts’ confirmation and has joined several cases before the Court on the losing side. “But it’s still early, and there are a lot of divisive issues ahead that the current era of good feeling can’t overcome.” For example, Mincberg finds it hard to imagine that the Court will achieve unanimity on the Texas redistricting cases this term or on the “partial-birth” abortion case next term. Mincberg also warns that Roberts’ early success in unifying the Court should not obscure the fact that “he continues to be a very conservative jurist.” In Gonzales v. Oregon, one of the few cases this term that divided the Court significantly, Roberts joined Justice Clarence Thomas in a dissent written by Justice Antonin Scalia that would have upheld former Attorney General John Ashcroft’s directive prohibiting Oregon doctors from prescribing drugs for use in assisted suicide. Richard Lazarus, a professor at Georgetown University Law Center, disputes Mincberg’s view, asserting that Roberts has already made it clear he is taking a non-ideological approach to his job. “He is showing he is not a dismantler of precedent,” says Lazarus. “If you want to make law and push an agenda, you don’t look for consensus, you look for 5-4 decisions” that stake out new positions. Lazarus also points to how Roberts has assigned opinions to other justices. In the abortion-related case Ayotte v. Planned Parenthood of Northern New England, Lazarus says, Roberts “could have assigned it to Scalia and gotten a fragmented Court.” Instead the assignment went to O’Connor, who avoided reviewing abortion precedents and sent the case back to lower courts, thereby avoiding making any new law or controversy. In the March 6 case Rumsfeld v. FAIR, concerning military recruiting on campuses, Roberts made a tricky First Amendment case look simple, partly by asserting that the First Amendment was hardly at issue and partly by leaving precedents untouched. He wrote the opinion for a unanimous Court. Roberts has borrowed from his predecessor’s style in one respect. Like Rehnquist, he is a sharp questioner of oral advocates, though Roberts already asks more, and more persistent, questions than Rehnquist did. “He has not been reticent,” says Lazarus, who helps advocates prepare high court arguments. “Almost from the get-go, he has been pretty active.” One of Roberts’ sharpest exchanges came during oral argument Feb. 21 in S.D. Warren Co. v. Maine Board of Environmental Protection, an environmental case involving federal and state regulation of hydroelectric dams. Roberts told assistant to the solicitor general Jeffrey Minear, “I was surprised, in a case involving a FERC [Federal Energy Regulatory Commission] license condition, that no one from FERC signed on to your brief.” Minear, perhaps forgetting that Roberts was once a deputy solicitor general, replied, “Well, Your Honor, as people in the office are familiar with, in the SG’s office the names on the brief tell very little about who has participated in the discussions and the writing of the brief.” Roberts’ retort: “But if it’s a case involving a FERC license, and FERC isn’t there, I think it says a great deal.” Minear tried to wiggle away, but Roberts pressed on. “Do you know what FERC’s position is in this case?” Replying the only way he could, Minear said firmly: “I certainly do. They join the consensus position of the United States. . . . This is the position of the United States.” FERC solicitor Robert Solomon, who was in the audience at the argument, said, “We’re fine with that representation,” though he declined to say if FERC has taken a position on the issue involved. Georgetown’s Lazarus has also noticed that when Roberts speaks, his colleagues don’t interrupt, as they sometimes do with other justices. “They are very respectful of him,” says Lazarus, a Harvard Law School classmate of Roberts. “He’s their chief.”
Tony Mauro can be contacted at [email protected].

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