Chief Justice John Roberts Jr., speaking at a judicial conference this summer, sounded positively proud of the consensus he forged in his first term in office. Roughly half the cases were decided unanimously, almost twice as many as in recent years.
And when the run of unanimity ended with some contentious 5-4 decisions in June, Roberts noted unhappily to his audience, some commentators pronounced that the era of good feelings was over.
“You know, when Joe DiMaggio finally ended his hitting streak, sportswriters didn’t say, ‘He’s all washed up,’ ” Roberts said, mildly miffed, to the 9th Circuit conference in California.
True enough, but then again, DiMaggio, the legendary New York Yankee, never again matched that 56-game hitting streak of 1941 — nor has anyone else. And Roberts may not have another term as harmonious as his first, either.
Roberts’ second term as chief justice begins Oct. 2 with a slew of tough curveball cases on the docket. Contentious disputes over abortion rights, race, punitive damages, and the environment loom large, and the Court has only just begun to fill its argument calendar for the term.
The cases will bring crucial and tricky choices for the Court’s other new justice, Samuel Alito Jr., who replaced centrist Sandra Day O’Connor on the bench, as well as for Justice Anthony Kennedy, who replaced O’Connor in the less official position of swing voter.
But this term will also be a test of Roberts’ leadership, especially since he has been so vocal in establishing greater unanimity and consensus as a goal for the Court.
In remarks at the same 9th Circuit conference in July, Roberts offered a remarkable definition of a justice’s duties. “It’s important for all of the justices to view it as part of their responsibilities to try to work as a Court, rather than the pursuit of individualized jurisprudence.” The late Chief Justice William Rehnquist stopped trying for that kind of collegiality in his final years, presiding instead over a growing cacophony of split decisions, separate concurrences, and partial dissents.
Roberts is determined to reverse that trend to enhance the “stature and legitimacy of the Court,” he said. And if achieving the goal of greater harmony means deciding cases very narrowly, Roberts added, so be it.
“There are many cases we get that can be decided on a number of different grounds,” Roberts told the conference. “If there’s one where it’s 8-1 or 9-to-nothing, and another where it’s 5-4, I think it’s better to decide on the former ground and let it go at that.”
Roberts’ strategy, said former acting Solicitor General Walter Dellinger III, is a throwback to Roberts’ days as a skilled Supreme Court advocate. “Advocacy makes you a minimalist,” Dellinger said at a Cato Institute conference. Now head of O’Melveny & Myers’ appellate practice, Dellinger said that finding narrow ground on which to win a case is “what he did for a living.”
But will that minimalist approach cut it in the big cases this coming term, when advocates will be seeking broad decisions either preserving or toppling controversial precedents? Florida International University law professor Thomas Baker, a former aide to Rehnquist, thinks the institutional pressures on Roberts and Alito will result in small change. “The Court is like a big ship — it only turns slowly.”
But Baker and others still view the coming term as far more important than the last. Last term, he says, “they were looking for cases they could decide in ways where Justice O’Connor was not crucial to the outcome. Now we are going to see what her departure really means.”
Nowhere will O’Connor’s departure mean more this term than in a pair of cases set for oral argument Nov. 8, Gonzales v. Carhart and Gonzales v. Planned Parenthood. At issue in both is the federal law banning “partial birth abortion,” which Congress passed in the wake of the Court’s 2000 decision Stenberg v. Carhart, which struck down a similar statute in Nebraska because it failed to include an exception that would allow the procedure if needed to protect the health of the mother. The federal law also does not contain such an exception, but Congress cited medical evidence — which abortion rights supporters dispute — to conclude that the procedure is never needed to protect a woman’s health.
O’Connor was in the majority that struck down the Nebraska law, and Kennedy was in dissent, even though both had been architects of the 1992 decision Planned Parenthood v. Casey, which rescued Roe v. Wade from being overturned.
Kennedy now must grapple with a no-win dilemma that rivals the agonizing he did before Casey, which at the time produced his now-classic musing: “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own towline.”
If Kennedy votes to strike down the federal law in the November cases, he could be viewed alternately as:
• Liberal, because he will be siding with the abortion rights advocates;
• Activist, because he won’t be deferring to the will of an elected Congress; or
• Nonactivist, because he will be adhering to established precedent regarding the health exception.
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