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:
• Conservative, because he will be following the Rehnquist Court view of limited congressional power to regulate states;
• 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.
By the same token, if Kennedy sticks with his 2000 stance against partial birth abortion and votes to uphold the federal law, he could be viewed as:
• Conservative, because he will again join the camp of abortion rights opponents;
• Liberal, because he will be supporting the view that Congress has broad power to override the views of states;
• Activist, because he will be overturning recent precedent; or
• Nonactivist, because he will be showing deference to elected legislators.
“Which Kennedy will show up?” asks Florida International’s Baker. “The �Casey’ Kennedy or the �Stenberg’ Kennedy?” He thinks it may be the latter, with Kennedy adhering to his dissent in Stenberg by voting to uphold the federal ban.
“The late Justice Potter Stewart would dissent one year, then feel honor-bound to follow the precedent the next year,” says Baker. “I don’t see that in Kennedy’s jurisprudence.”
Similar issues of precedent will influence the Court’s consideration of two race cases, Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education. The Sixth and 9th circuits upheld plans in Kentucky and Seattle, respectively, that use race as a factor in assigning students to public schools to achieve diversity.
Though the cases pose somewhat different issues than those raised by the higher education program upheld in the 2003 affirmative action case Grutter v. Bollinger, many analysts see that precedent now up for grabs. Again, O’Connor was in the majority in Grutter, and Kennedy was in dissent.
“It will be very hard to overturn the school cases without overturning Grutter, even if the opinions claim they are not doing so,” says Court historian David Garrow, who teaches at the University of Cambridge in England. “The Court is institutionally disinclined to discard its own high-visibility precedents.”
The Court’s business docket occupies an unusually high proportion of the cases it’s accepted for this term � namely, 13 of the 29 granted review so far � said veteran advocate Roy Englert Jr. of Robbins, Russell, Englert, Orseck & Untereiner at a Chamber of Commerce briefing. Continuing its recent trend of heightened interest in antitrust issues, he said, the Court is expected to rule in “a minimum of five” antitrust disputes this term.
But the most high-profile business cases so far involve the following:
• Punitive damages. In Philip Morris v. Williams, set for argument Oct. 31, business groups are hoping the Court will continue down the road it took in the 2003 decision State Farm v. Campbell, which sought to temper punitive damage awards. The 2003 ruling suggested a maximum of a 9-1 ratio between punitive and compensatory damages, but states have responded in widely varying ways. In the case before the Court, an Oregon jury awarded Mayola Williams $79 million in punitive damages on top of an $895,000 compensatory award. “This is the first case Roberts and Alito will decide in the punitive damages area,” says Mark Levy, counsel at Kilpatrick Stockton in Washington. Both, he says, are “up for grabs.”
• Patents. In KSR International v. Teleflex the Court will consider an issue that arises in almost every patent dispute: When is an invention so obvious that it does not deserve a patent? The U.S. Court of Appeals for the Federal Circuit set a standard for assessing obviousness that critics say has allowed too many patents to be approved.
• Global warming. The Court will review the Environmental Protection Agency’s determination that it has no authority to regulate emissions of carbon dioxide and other greenhouse gases emitted by cars. The EPA also said scientific uncertainty about the effect of these gases on the global climate led it to decide it should not regulate these emissions. In Massachusetts v. EPA, 12 states challenged a ruling by the U.S. Court of Appeals for the D.C. Circuit that the EPA had “properly exercised” its discretion in declining to regulate.
But even beyond the headline-making cases, the Court’s cases include many that could have a broad impact on everyday life.
That will be clear from the first argument on the first day the justices are on the bench, Oct. 3. (There will be no arguments Oct. 2 because of the Yom Kippur holiday.)
Two cases consolidated for the Oct. 3 argument could expose thousands of immigrants to automatic deportation. Those convicted of felonies already can be deported, but in these cases, from South Dakota and Texas, the issue is whether deportation should result from relatively minor offenses such as drug possession, which is a felony under state law but a misdemeanor under federal law.
The immigrant cases will have “broad significance,” said Steve Shapiro, legal director of the American Civil Liberties Union, at a briefing. Along with the blockbuster cases and others, said Shapiro, they will reveal the direction of the newly constituted Court.
“Last term we got a glimpse of the Roberts Court, but only a glimpse,” Shapiro said at the Sept. 19 briefing. “At the end of this term, we will know a lot more.”
Tony Mauro can be contacted at email@example.com.