A Supreme Court Conversation
Good morning, Dahlia,
I had two grandsons spending the night and they got me up early. So, I thought I'd run a couple of things by you that I read on the Internet.
Today is the last day of the Supreme Court's term, and before lunch we will know the fate of Arizona's insanity defense and military tribunals for "enemy combatants." Before we get into the court's final decisions—finding illegal the Bush administration's special military tribunals and upholding Arizona's law on the insanity defense—it's worth looking back at the term's most significant development—a change in the court's composition for the first time in more than a decade. The always insightful Tom Goldstein of Akin, Gump has compiled the statistics on agreement and disagreement among the nine justices and added his own observations.
The first thing worth noting is the early indication of the shift produced by Justice Alito replacing Justice O'Connor. Statistically, we can compare O'Connor's percentage of agreement and disagreement with her colleagues from last term and Alito's figures from this term. Goldstein cautions that Justice Alito has participated in only 36 of this term's decisions. But the numbers are still suggestive. Alito agrees significantly more frequently with justices Scalia and Thomas than O'Connor did (almost 15 percent more often) and less frequently with the more liberal justices than she did. If you excluded from the analysis the cases decided unanimously, I'll bet the differential would be a good bit higher.
But that is to be expected. What is more interesting is the mathematical miracle worked by the new chief justice, who managed to agree more frequently with the conservative members of the court than his predecessor William Rehnquist did—and also more frequently with his liberal colleagues.
That feat is consistent with the impression one has that he has produced more consensus among the justices than has been the case in the past.
There is still a lot to learn about John Roberts as the court's leader. However, I can't help but thinking that over the decades to come, he will be a chief justice of very great influence. There is, of course, his sheer brain power: Advocates before the court have remarked all term that his questioning is extraordinarily sharp and focused on the heart of the case. Insufficiently noted, however, is how unusually prepared he was to become chief.
Most modern justices have never themselves argued a case before the Supreme Court, and very few were experienced advocates. Ruth Ginsburg argued a few major women's rights cases, and Thurgood Marshall had extensive experience before the court. The former Justice Robert Jackson was noted for his skill as a Supreme Court advocate. But that's about it—and none of them have served as chief justice.
John Roberts is the first chief justice whose entire career was essentially spent as a Supreme Court advocate. And, in my view, there was no one better at it then he was. The point is this—John Roberts comes to his role as chief having spent his professional lifetime honing the skill of persuading five justices to agree with his position. Supreme Court advocacy at the level at which Roberts practiced it consists of more than making a convincing case. One has to find ways to conceptualize the issue at stake and propose a resolution that a majority of the court, comprised of members with disparate views, can agree upon. Roberts comes to the court better equipped to accomplish that task than anyone before him.
Time will tell how he uses that gift.
Talk to you again shortly,
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.