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At the end of John Roberts Jr.’s first full year as chief justice, his tenure is taking shape, framed by sometimes conflicting goals of collegiality, continuity, and change. He leads the nation’s highest court more openly and with a lighter touch than his predecessor, the late William Rehnquist, and has quickly endeared himself to Supreme Court staff. But his imprint on the Court as an institution has been measured in small increments so far, as the realization sets in that major change — such as increasing the size of the Court’s docket and reforming the law-clerk-pooling arrangement — may take years to accomplish. “He is trying to bring the old traditions of the Court into the 21st century,” says former Court official Harvey Rishikof. “It’s going to take awhile.” Nearly everywhere he goes, Roberts speaks of his desire to preside over a more cohesive and unanimous Court. But with resignation in his voice, he notes that he cannot achieve that goal without active help from his colleagues. “I think we’re most effective when we operate and function as a court rather than nine separate individuals,” Roberts said at the University of Miami Nov. 13, adding pointedly, “I think we all need to do what we can to work toward that end.” And when, at the Miami talk, ABC News reporter Jan Crawford Greenburg asked him how it felt to join the high court as its boss, Roberts gently corrected her. “The chief justice really doesn’t have a lot of authority of the sort that would cause you to refer to him as a boss.” But Roberts is not losing sleep over this fact of Supreme Court life. Already steeped in the ways of the Court, Roberts knows that unlike a modern corporate executive who must produce quarterly gains, as a life-tenured chief justice, he can pace himself for the long haul. E. Barrett Prettyman Jr., a longtime friend of Roberts, recalls that when Warren Burger became chief justice in 1969, he ruffled feathers and made enemies quickly by changing internal procedures and using — some say abusing — his power to assign opinions as a way to reward and punish colleagues. “That isn’t John,” says Prettyman, who is of counsel at Hogan & Hartson, Roberts’ former firm. “He may end up making the same changes, but they’ll hardly notice it because he’ll stretch it out over years.” A MEASURE OF CHANGE Some small changes have already taken place. Oral arguments are more advocate-friendly, lawyers say. For example, Roberts has been more willing than Rehnquist was to spontaneously grant extra argument time to advocates when fairness seems to require it. Even better, at least from the advocates’ perspective, is that they are now able to get a few more words in edgewise before a justice asks a question. According to a new study by University of Kansas professor Lawrence Wrightsman, the number of words advocates are able to speak before being interrupted by a justice has jumped nearly 50 percent under Roberts. That trend has been attributed to the retirement in January of Justice Sandra Day O’Connor, who was usually first with a question. But Wrightsman’s numbers indicate the increase started even while O’Connor was on the bench. Wrightsman is the author of a new book, The Psychology of the Supreme Court.
May I Interrupt . . .
Median number of words spoken by Supreme Court advocates before a justice asks a question.

Petitioner Respondent
• 2003-2004 term (Rehnquist presiding) 111 82
• 2004-2005 term (Rehnquist or Stevens presiding) 111 77
• 2005-2006 term (Roberts presiding, O’Connor on Court) 137 84
• 2005-2006 term (Roberts presiding, Alito on Court) 155 116
• 2006-2007 term (Roberts presiding, through December) 160 121

Source: Lawrence Wrightsman, University of KansasNotes: During the 2004-2005 term, Justice John Paul Stevens presided during periods of Chief Justice William Rehnquist’s illness. Chief Justice John Roberts Jr. presided during the entire 2005-2006 term, and Justice Sandra Day O’Connor served as an associate justice until Jan. 31, 2006, when Justice Samuel Alito Jr. succeeded her.

Perhaps the most visible change Roberts has wrought was the decision to release oral argument transcripts promptly on the same day that they occur. Scholars and journalists had asked for this change for years without success. But when Roberts arrived, the request made sense to him, and with the agreement of the Court, he ordered it done. But bigger changes have proved more elusive. Like many veteran Supreme Court advocates, Roberts was a critic of the Court’s “cert pool” arrangement, under which all the justices except Justice John Paul Stevens pool their clerks to summarize incoming petitions. The pool means that many petitions are scrutinized only by two clerks and no justices, causing concern that clerks have too much power. In spite of his views, Roberts has joined the pool in both his terms on the Court — though each time he has indicated that his decision covered only that term. Reforming the pool is an example of the kind of change that would rankle colleagues if Roberts were to undertake it too quickly, so he appears to be biding his time. But the toughest nut so far for Roberts appears to be increasing the number of cases the Court reviews each term. During his confirmation hearing in September 2005, Roberts said the Court could help clarify the law by taking more cases — closer to 100 per term, rather than the 75 to 80 it has ruled on in recent years. Instead, last term — Roberts’ first — it ruled on even fewer cases, 69, and this term the number could sink even lower. The Court canceled an argument day in December, and on three out of the five argument days this coming February, only one case will be heard instead of the usual two. Why the dearth of cases? Lawyers in the Solicitor General’s Office and elsewhere reject one popular theory, namely that when the conservative Bush administration and the Court’s like-minded members look out over the conservative appeals court landscape, they see fewer decisions that need fixing. “I strongly disagree that this is the end of history, that there are no issues left to resolve,” says Thomas Goldstein of Akin Gump Strauss Hauer & Feld, a close student of the Court’s docket. Goldstein points to several factors to explain the slowdown, including the possible reluctance of the Court’s liberals to seek reviews of cases that, because of the new lineup, they might lose. Goldstein also suggests that O’Connor’s retirement may be a reason, noting that she “kept the Court abreast of the docket” in courts nationwide. With her gone, the Court may be more willing to let issues percolate longer without its intervention. (Goldstein writes a column for Legal Times.) Roberts himself has not offered a theory publicly, but those who have spoken with him say he rejects the view that the Court is ducking major, festering issues. Several justices have also said they have not been seen many review-worthy petitions cross their desks recently. Of course, if enough justices express that view, which might not have been shared by O’Connor, it alone would provide an answer to the mystery: The vote of four justices is needed to review a case. Roberts has brought in his own team to help administer the Court itself and to lead the federal judiciary: Jeff Minear as his administrative assistant at the Court, and James Duff to head the Administrative Office of the U.S. Courts. A PUBLIC PRESENCE Roberts has become a ubiquitous ambassador for the Court, speaking to bar groups, broadcast interviewers, and book authors at a brisker pace than his more reserved predecessor, Rehnquist. Roberts has held two press conferences and will be seen frequently on a PBS special on the Court airing in January. “He believes that it is good for the Court to have a chief justice who is not afraid of appearing in public,” says Prettyman. “He goes everywhere.” There are limits to this openness, however: Roberts is declining press interviews for now, a spokeswoman said when asked for comments for this story. Inside the building, Court employees speak of “a breath of fresh air” and a less formal atmosphere. But even as staffers praise Roberts, they hesitate to do it openly, not wanting to imply criticism of the late Rehnquist, who was also popular. How has the job changed Roberts personally? Friends say he has been struck with the gravity of the position and how much there is to do. In the ABC interview, Roberts joked that his new job has given him a good excuse when his wife, Jane, asks him to run household errands. But Roberts has still been able to stay grounded and in touch with friends, says Prettyman, who offers poignant evidence. About six weeks ago, when Prettyman’s wife, Maureen, was hospitalized in Washington, she was pleasantly surprised by an hourlong visit from Roberts, his wife, and their two young children. “It did her so much good,” says Prettyman. “It was the John Roberts we’ve always known.”


Tony Mauro can be contacted at [email protected].

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