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Early signs show Roberts will be a dynamic leader


John Roberts was sworn in as the 17th chief justice on Sept. 29 by Associate Justice John Paul Stevens. Roberts' wife, Jane, is at right, holding the Bible. 
 (File/Associated Press / The Spokesman-Review)
Joan Biskupic USA Today

WASHINGTON – The question before the Supreme Court that day in early October was whether federal law prevents Oregon from allowing doctors to prescribe overdoses of painkillers to allow terminally ill patients to commit suicide.

It wasn’t long before John Roberts, in his first week as chief justice, made it clear how he would question lawyers who come before the high court: forcefully and with biting humor.

When a lawyer for Oregon said states could control health laws based on an 1824 court ruling, Roberts quipped, “Well, the relationship between the states and the federal government has changed a little” since then. Laughter filled the usually sedate courtroom.

It is too early to assess how Roberts – a federal judge who was President Bush’s pick to succeed William Rehnquist, who died of thyroid cancer Sept. 3 – will affect the law during his lifetime appointment. But less than three months after Roberts took the court’s center seat, there are signs he will be a more dynamic chief than his predecessors, fellow conservatives Rehnquist and Warren Burger.

Behind the scenes, Roberts, a former law clerk to Rehnquist, has showed deference to the late chief by following in his footsteps in some ways. Rehnquist enjoyed a warm relationship with the eight other justices, and Roberts, 50, quickly has established a bond with his colleagues, several of whom are a generation older.

The tone was set right after Roberts was sworn in. Justice John Paul Stevens, 85, noted that Roberts, as a lawyer for private interests and the government, had argued 39 cases before the court – more than “the combined experience of the rest of us.” Stevens, leader of the court’s four-member liberal wing, added, “He has already earned our respect and admiration.”

Roberts is also following procedures set by Rehnquist in a range of behind-the-scenes activities. At the court’s holiday party, Roberts sang Christmas carols, a whimsical tradition of Rehnquist’s.

Kenneth Geller, a Washington lawyer who has argued before the court for more than three decades, says Roberts appears to have avoided challenging the ways of his more experienced colleagues. “When the other eight justices are old enough to be your father or your mother, there’s a tendency to do things slowly,” Geller says. (He exaggerates the justices’ ages, but only a little: Next to Roberts, the youngest justices are Clarence Thomas, 57, David Souter, 66, and Stephen Breyer, 67.)

Socializing more

Roberts has also distinguished himself from Rehnquist, however.

The new chief justice has been socializing publicly more than his predecessor, who shunned Washington’s party circuit even before he fell ill in October 2004. At a recent holiday party hosted by U.S. Solicitor General Paul Clement, Roberts mingled with the guests.

Roberts often eats lunch in the court’s cafeteria, which is open to all employees and the public.

More significantly, former U.S. solicitor general Theodore Olson and other lawyers who have argued before the high court say Roberts could distinguish himself from Rehnquist during the private conferences in which the justices decide cases.

In such meetings the chief justice has one vote, just as the other justices do. But the chief is in charge, and when he is in the majority in a decision, he decides who will write the opinion that speaks for the court. When the chief is not in the majority, the most senior justice on the winning side assigns the opinion. A particularly persuasive chief can influence his colleagues’ votes.

Olson says Roberts, with his personality and charm, could become more of a leader on legal issues than recent chiefs.

Rehnquist, who had been on the court since 1972 and became chief in 1986, was a consistent conservative but avoided pressuring his associates to his way of thinking.

The previous chief, from 1969 to 1986, was Burger, who sought to be a more persuasive force for conservatism. However, Burger’s blustery presence and strained relationships with some justices made it difficult for him to be very effective.

“William Rehnquist was well respected by all his colleagues,” says Washington lawyer Thomas Goldstein, who has argued two cases before the new chief. “John Roberts seemingly has that, plus the added strength of his open personality.”

Opinions will matter most

In the end, what will matter most for Americans will be the decisions that Roberts writes. He has issued one opinion, in a relatively minor dispute over attorneys’ fees the court decided unanimously.

The court has not ruled in the Oregon case or in any other major dispute in the annual term that began in October, so the main hints to Roberts’ legal approach have come during oral arguments.

The former lawyer for the Reagan and first Bush administrations has appeared to be in line with his reputation: Roberts’ questions have suggested that he, like Rehnquist, generally favors the government in criminal cases and that he has a narrow view of individual rights – including those associated with abortion.

In a dispute that tests a New Hampshire law that requires a pregnant minor to notify a parent before having an abortion, Roberts’ objections to a lower court’s decision to strike down the state law appeared to be in line with those of Antonin Scalia, one of the court’s most conservative members.

It’s also clear that Roberts has the respect of Scalia, a 19-year veteran of the bench known for his assertive, brash style.

In a case from Georgia, Goldstein argued that police should not have the right to search a home for drugs if one resident gives permission but the other objects. Roberts appeared to side with the state, which argued that drugs found in such a search could be used as evidence at trial.

Just as Roberts was about to make his point, Scalia started to ask his own question but stopped. He turned to the new chief and said, “Go on.”