Oregon State Bar Bulletin — NOVEMBER 2005

The New Chief
By Jeff Bleich, Michelle Friedland & Daniel Powell

On Sept. 29, 2005, John Roberts was confirmed as the 17th Chief Justice of the United States. The appointment of a new chief justice is always a momentous occasion in the Court’s history. As the "first among equals," the chief justice gets only one vote, but through his ability to assign the opinion in any case in which he is in the majority, coupled with the potential for the associate justices to look to him for leadership, a chief justice can have a disproportionate impact on the Supreme Court. This appointment in particular, however, may be of even greater significance in the Court’s history. After a period of almost unprecedented stability in the composition of a closely divided Court, Chief Justice Roberts will preside over what may be a much different Court after Justice Sandra Day O’Connor’s replacement is confirmed, and may be required to guide the Court through the challenges that entails.

A Uniter or a Divider?
It is always a risky business to predict how a justice will behave once he takes his seat. A couple of things about John Roberts, however, may give us some sense of how he may behave, both as chief justice and as a jurist. First is the fact that Roberts was appointed chief justice from outside the Court rather than elevated from within. In this regard, he is like nine of his 16 predecessors. At the same time, he is an "insider" in many ways, having worked as an deputy to the solicitor general (often referred to as the "10th Justice"), clerked for Chief Justice Rehnquist, socialized with many of the justices and appeared before the Court frequently.

One way to assess how Chief Justice Roberts’ role as a quasi-outsider might affect his ability to shape the Court is to look at two recent examples. The two chief justices before William Rehnquist, Earl Warren and Warren E. Burger, were both appointed from outside the Court, yet had dramatically different leadership styles and legacies. Warren was a career politician with no direct judicial experience or known judicial philosophy but with a large national profile; Burger, by contrast, had been a judge on the D.C. Circuit for 13 years with a developed judicial philosophy but no significant political or national profile. Soon after his appointment, Chief Justice Warren was given the delicate task of guiding the Court through the thicket of the civil rights cases. Using the considerable political skills he had acquired as governor of California, Chief Justice Warren was able, among other things, to write for a unanimous Court in Brown v. Board of Education, 347 U.S. (1954), and to maintain that unanimity in all subsequent desegregation opinions. By forging a unified front, Chief Justice Warren is generally credited with having reinforced the legitimacy of those decisions, helping ensure that the Court’s decisions would be honored despite widespread public opposition to them, particularly in the South. Even Chief Justice Warren’s detractors admit – indeed lament – his skill at navigating the Court through significant doctrinal changes, particularly in the area of constitutional law. Much of his success in forming majorities on such contentious issues as school prayer, criminal defendants’ rights against illegal searches or interrogations, the elimination of segregation and the rights of sexual privacy owes less to his legal scholarship than to the prodigious leadership skills he’d developed over the course of his many years of political life.

Chief Justice Burger, on the other hand, is generally acknowledged to have been much less successful in leading the Court or charting a course for its jurisprudence. His leadership style was generally disliked by the associate justices, many of whom went out of their way to praise the improvement in court management when he retired and was replaced by Chief Justice Rehnquist. Despite being an outsider, Chief Justice Burger immediately attempted to impose many changes to the operation of the Court, an institution with life-tenured occupants that do not readily embrace such imposition. Some changes were minor but appeared unnecessary and pompous – such as his installing a special light in the Courtroom to illuminate the Chief Justice’s chair, or his installing a large mahogany desk in the conference room for himself. Others were seen as presumptuous, such as in 1970 when he hired an extra law clerk and then tried to assign him to Justice William Douglas’ chamber. Predictably Douglas refused, and the incident only added further strain to their relationship. Over time, Chief Justice Burger even managed to alienate his childhood friend whom he’d helped bring on to the Court, Justice Harry Blackmun. Other substantive aspects of his leadership style irked the associate justices, such as his frequent practice of changing his vote from the one he stated at conference so that he could retain the power to assign the opinion, and the use of that assignment power in an overtly political manner. As a result of these shortcomings in his political style, many conservatives who had initially hailed Chief Justice Burger’s ascension as a "strict constructionist" later complained that the Court was largely ineffectual under his leadership in making that principle a reality.

The question, then, is whether Roberts will be more like Chief Justice Warren or more like Chief Justice Burger, at least in terms of his leadership style. Although by background – that is, a lawyer and judge with no experience in elective office – Chief Justice Roberts might resemble Burger, several factors suggest he will be much more like Earl Warren in his style and effectiveness. First, Roberts clerked for then-Justice Rehnquist, and — while he did so only while Justice Rehnquist was still an associate justice — he had a first-hand view of the effect of Justice Rehnquist’s leadership style within his own chambers and the effect of Chief Justice Burger’s leadership style on the Court as a whole. Roberts also served in the solicitor general’s office during the time that Rehnquist served as chief justice and was able to observe his management style close up — and to observe his future colleagues’ reaction to that style. Unlike Chief Justice Burger, who was sometimes viewed as imperious even by his friends, Chief Justice Roberts’ former colleagues note that he has an approachable and respectful personality. His colleagues on the D.C. Circuit, as well as his former law partners, have all praised his calm and steady manner of leading others and his affable personal style. Roberts thus appears likely to continue the collegiality that marked the Rehnquist Court, and is fortunate to already have a head start in his relationship with several members of the Court.

Equally important, the justices can be reassured by Roberts’ many years of participation in the Court as a clerk, government advocate and private advocate, as well as his testimony before the Senate, that he has a great deal of respect for the history of the institution. It seems unlikely that he would move immediately or in any ham-handed fashion to impose his own unique stamp on the Court or to dramatically change Court procedures. If this proves to be the case, he’d be unlikely to bruise the toes of his colleagues by attempting to change significantly how the Court operates. Even more importantly, unlike Chief Justice Burger, Chief Justice Roberts does not espouse any particular desire to change the doctrinal direction of the Court from that of Chief Justice Rehnquist. While Chief Justice Burger’s judicial philosophy was in many ways diametrically opposed to his predecessor’s, Roberts’s is much more in line with that of Chief Justice Rehnquist. Thus, while Roberts may want to move the Court to the right, at least in certain areas, it is unlikely that he seeks to jettison well-established principles of Constitutional interpretation. Furthermore, as a jurist who is not as caustic in his writing as Justices Scalia or Thomas, and who appears more willing to compromise in order to build a majority for a particular outcome, Chief Justice Roberts may, like Chief Justice Rehnquist, be able to help maintain some consensus on all but the most highly contentious issues.

Roberts’ Jurisprudence
Predicting Roberts’s jurisprudence is a more difficult task than foreseeing how he is likely to behave as an administrator of the Court. Given his short tenure as a judge on the D.C. Circuit, there is little data to use to predict his future voting patterns. The difficulty of looking to past decisions to predict future votes is further compounded by the limited docket of the D.C. Circuit, which deals disproportionately with review of federal agency decisions, and does not often deal with hot button issues such as states’ rights or the death penalty. Again, however, history may provide some insights. As a practical matter, most justices initially vote with other justices who were appointed by a president of the same party that appointed them. That is partly the predictable result of presidents trying to select jurists based on their presumed ideology, but may also be the result of a feeling of indebtedness to the president’s party by the newly appointed justice. It also may reflect a natural timidity in staking out views that are different from those justices who have both common judicial philosophies and more experience on the Court. Whatever the reason, however, over time the views of new justices and their "sponsors" often diverge. For instance, when he was first appointed to the Supreme Court Justice Blackmun voted with Chief Justice Burger so often that he was at times disparaged as "Hip-pocket Harry" or "the Minnesota Twin;" the same was not true at the end of Burger’s tenure when Justice Blackmun voted more often with the Court’s liberals. Similarly, Justice Souter was much more likely to vote with fellow Republican Chief Justice Rehnquist during his first term than he was in October Term 2004: they voted together 85 percent of the time in OT ’90 versus 59 percent in OT ’04. Of course, the new justice may also turn out not to change at all, but to continue to share the ideology of the justice with whom he or she initially voted; Justice Scalia, for example, voted along with the Chief Justice over 80 percent during their nearly two decades together on the Court. Likewise, Justice Clarence Thomas famously put up a sign in his chambers in response to media praise of Justice Kennedy’s "growth" on the bench, that says simply "I’m Not Growing." Thus while new justices are likely to look to other justices with similar political pedigrees at first, there is no predicting how (or if) things will shift over time. Should this typical pattern hold then, Chief Justice Roberts will likely vote as his predecessor did, supplying a fairly reliable vote for the conservative wing of the Court, at least for the first few years.

Is It a Jump to the Left, or a Step to the Right?
If Chief Justice Roberts were to shift at all from his current views, there are conflicting signals over what direction he would move. In some areas, Roberts seems to share the views of Chief Justice Rehnquist and will likely vote with Justices Scalia and Thomas for quite some time. For instance, Roberts seems to share the Rehnquist narrow view of the Commerce Clause power. In Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003), Roberts urged the full Circuit to review the application of the Endangered Species Act to the arroyo toad, "that, for reasons of its own, lives its entire life in California…" To be fair, Roberts concluded only that the panel’s approach was inconsistent with the Supreme Court’s Commerce Clause jurisprudence in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000), and he did appear open to "consider(ing) alternative grounds for sustaining application of the Act." Nevertheless, it suggests a willingness to closely scrutinize acts of Congress to ensure they are a proper exercise of the Commerce power, an inquiry that many of the more liberal justices feel is usually unnecessary.

Roberts also appears to share Chief Justice Rehnquist’s deferential attitude toward the executive branch on issues involving national security. In Hamdan v. Rumsfeld, 415 F.3d 33, released just this past July, Roberts joined an opinion giving the president broad authority both in deciding how to implement the Geneva Convention and in trying enemy combatants before a military commission. Although Roberts did not write that opinion, he, unlike Judge Williams, joined the opinion in full.

His other opinions on the D.C. Circuit appear to suggest a similar willingness to defer to the Executive in matters of foreign affairs. See, e.g., National Council of Resistance of Iran v. Department of State, 373 F.3d 152 (D.C. Cir. 2004); Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment). And, while the D.C. Circuit does not hear many due process cases that would reveal how he is likely to decide cases involving abortion or the right to privacy, the few criminal cases that he has participated in suggest that, here to, he will decide cases in a manner similar to that of Chief Justice Rehnquist.

Despite the pull of these conservative anchors, there are hints that Roberts may still be open to – and even move toward – some more moderate positions. First, in the area of personal autonomy, Roberts advised the Senate that he embraces the notion that there is a right to marital and sexual privacy in the Constitution – at least with respect to contraception – under Griswold v. Connecticut, 381 U.S. 479 (1965). Further, Roberts assisted in the briefing in Romer v. Evans, 517 U.S. 620 (1996), in which the Supreme Court invalidated a provision of the Colorado Constitution that prohibited any government entity in Colorado from protecting gays and lesbians on the basis of their sexual orientation. Roberts has steadfastly refused to say whether he agreed with the position taken in that case supporting several gay and lesbian groups or was simply assisting a client of his law firm as he would any other. However, it suggests at least the possibility that Roberts will be more receptive to the legal claims of gays and lesbians than Chief Justice Rehnquist or Justices Scalia or Thomas, and possibly toward other due process claims as well.

Likewise, in his confirmation hearings, Roberts testified that he would be willing to provide a "courtesy fifth" vote to stay an execution. When the Supreme Court is considering whether to grant certiorari in a case involving an inmate on death row, only four votes are needed to take the case, but five are required to stay an execution. When there have been four votes to grant certiorari in the past, Justice O’Connor and Justice Kennedy have often provided a "courtesy fifth" vote to stay the execution to ensure that the Court can actually hear the case before it becomes moot. Although there is no public record of Chief Justice Rehnquist adopting this practice, it appears that Roberts may do so.

Although reading tea leaves is often just a waste of good tea, we will make some predictions. It appears that in many ways the Roberts Court could initially be very similar to the Rehnquist Court, unless Justice O’Connor is replaced by a jurist with views dramatically different from her own. Chief Justice Roberts will likely not be inclined to change much in the way of the functioning of the Court, and it will likely remain as internally cordial as it was under Chief Justice Rehnquist. His votes too will most likely mirror those of his former boss and predecessor, at least at first. But what decisions those votes will produce will likely depend less on his views or management style than on whom he inherits to fill the next vacancy on the Roberts Court.

The authors are litigators at Munger, Tolles & Olson in San Francisco, and all previously clerked at the U.S. Supreme Court. Jeff Bleich clerked for the late Chief Justice William H. Rehnquist in the 1990 term and lectures on constitutional law at U.C. Berkeley School of Law. Michelle Friedland clerked for Justice Sandra Day O’Connor in the 2001 term and has taught federal jurisdiction at Stanford Law School. Dan Powell clerked for Justice John Paul Stevens in the 2004 term and never took either Jeff’s or Michelle’s courses.

© 2005 Jeff Bleich, Michelle Friedland & Daniel Powell

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