Art of persuasion may be key to a Roberts Court
WASHINGTON -- The Roberts Court.
With President Bush's nomination yesterday of 50-year-old John G. Roberts Jr. as chief justice, the next 30 years of American jurisprudence could carry his name if he is confirmed by the Senate.
The ultimate measure of that court will depend on the justices with whom Roberts serves. One man can't move a nine-member court by himself.
Two months of scrutiny of Roberts's record by supporters and opponents has painted an incomplete picture of a man who is respected both for his legal acumen and for his congenial manner. He impressed clients and colleagues alike with his shrewd arguments as a litigator before the Supreme Court.
While seemingly conservative in most of his legal values -- particularly in relation to limiting federal power -- he has also expressed a concern for maintaining precedent in order to preserve continuity in the law.
Roberts's cool personality should help keep the court functioning smoothly on an administrative level, as it did under his mentor, the late Chief Justice William H. Rehnquist.
And while Roberts's legal philosophy remains largely unexplored territory, his perspective on legal issues is presumed by some scholars to be similar to Rehnquist's, suggesting that his presence by itself won't alter the ideological dimensions of the court.
''He has such a reputation as a great lawyer that one would think he'd rule the court very well, in the same way as Rehnquist," said Boston University law professor Jack Beermann, a Supreme Court scholar. ''My guess is you won't see a radical change, because politically he's very similar to Rehnquist."
But having a conservative who built his reputation as a litigator running the Supreme Court for a potentially long tenure could have far-reaching consequences. Roberts's persuasiveness in judicial conferences could sway other justices -- including such moderates as Anthony Kennedy and David Souter -- in a conservative direction.
Rehnquist was easygoing in manner and, as chief justice, won the admiration of colleagues for dividing up work among the justices without showing favoritism. But he was also flinty in his conservative views, having spent most of his early years on the court as a lone conservative bucking his senior colleagues.
The most outspoken conservative among the current justices, Antonin Scalia, is known for being alternately irascible and friendly, and for having ridiculed his colleagues' views in a series of scathing dissents. Clarence Thomas, another conservative, rarely participates in discussions on the bench and seems to exert little pull with his more moderate colleagues.
Roberts, who has studied the predilections of the various justices in preparing 39 arguments before the court, is something new: A conservative who has specialized in wooing his fellow justices to his side.
Mark V. Tushnet, a Georgetown University law professor and author of a book on the Rehnquist court, noted that one of the court's liberal members, Justice Stephen Breyer, has made a point of trying to persuade moderates -- particularly Kennedy and the retiring Sandra Day O'Connor -- to move in his direction.
The affable Breyer has never had a rival persuader to square off against, and Roberts, to the extent that he's eager to take on that role, could end up directing his best pitches in the privacy of judicial conferences toward moderate colleagues.
But serving as chief justice could also limit his ability to perform that role. The chief presides over meetings of the justices and usually plays a peacemaker role in disputes.
The chief's sole advantage over other justices in deciding cases is getting to choose which justice writes the court's opinion when the chief is in the majority. (If the chief is dissenting, the senior justice in the majority decides who writes the opinion.) Most chiefs, like Rehnquist, feel an obligation to be even-handed and rule by consensus.
Perhaps as a result, past chief justices weren't often the intellectual leaders of the courts that bore their names. Earl Warren, who headed the court during its greatest period of liberal activism, was himself a reliably liberal vote. But scholars have noted that he sometimes took a back seat to colleagues such as William J. Brennan Jr. in cajoling other justices to create majorities for liberal decisions.
If confirmed as chief justice, Roberts could be the name and face of the court for years -- but not necessarily its guiding hand. 