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Wednesday, March 08, 2006 

Roberts Court Plays Well with Others

Justice Stephen Breyer is happy with how the newly formed Roberts Court is getting along.
"One thing that won't change is that we've all gotten along very well personally, no matter the outcome of cases," Breyer said. "My belief is we will continue to get along personally. As far as personal dynamics, the court works as well as ever."
He is also pleased with the increased amount of debate between the Justices. This may be one of the important style differences between Chief Justice Roberts and former Chief Justice William Rehnquist. Rehnquist prided himself in running the Justices' conferences (where they discuss the cases and vote) in an orderly fashion. While this was highly efficient, it had its problems. Justice Stevens believed that they never really discussed the case, just staked out positions. Maybe Chief Justice Roberts sees additional debate and discussion as an opportunity to persuade his fellow Justices, form stronger coalitions, and produce more unanimous decisions. With Roberts' intellect, charm, and humor, he may turn out to be a kind of judicial snake charmer. So far, Chief Justice Roberts has definitely lived up to his hype.

But in most of the important cases and even some of the 'second tier' cases the Justices know how they will vote long before oral arguments, so why waste time discussing the case, if the opinions and decisions of the Justices are most likely already made up?

Stronger coalitions and more discussion will not lead to more unanimous decisions. It is the individual Justice's ideology and decision to make a 'right' choice that will lead to unanimous decisions.

The only time unanimity is really needed is in trying to over come precedent, i.e., stare decisis. Unless there is a straight-forward case, you don't expect a 9-0 ruling, and even then is further discussion going to promote the 9-0? Probably not, but it would waste time, and truly a 9-0 compared to a 8-1 is not a big deal when looking at the cases that would be subject to such a decision.

You aren't going to see a 9-0 or 8-1 or even a 7-2 on an abortion case, or any of the other 'hot tickets' so why sit there and debate? Because maybe Thomas, Roberts, Alito and friends can convince Ginsburg and Stevens that they have been wrong all along with their liberal ideology? Probably not. Rehnquist did it the right way, and hopefully Roberts will decide he doesn't have to be personable and likeable to do a good job.

He is following quiet a man, a great Chief Justice. I understand he has to 'be his own man', but at the same time, take what Rehnquist did right and continue it. Take what Rehnquist did poorly and improve on it.

I disagree. Discussions are not a waste of time for a judicial body. They can result in important changes in how the role of the Court itself is viewed by the Justices. That, in result, affects the kind of rulings they hand down.

Of course there are instances where the Justice's minds are made up on an issue. I'm not saying that Roberts is going to convince Ginsburg to overturn Roe.

However, look at this term's Ayotte v Planned Parenthood. There, in a unanimous decision, the Court directed the lower appeals court to look at the abortion law in question much more narrowly. The Court seems to be resisting facial challenges to abortion laws (in the past, they might've just struck the whole thing down). This Court is looking to make more narrow invalidations of specific applications of the law.

Think of it as using a surgeon's scalpel instead of an ax. The Court will say "this specific 'as applied' challenge is an undue burden" but they won't invalidate the entire law. If the trend holds, it could be an important change in the Roberts Court.

A viewpoint like this is one that could only be arrived at via discussion. It's not the simple "thumbs up-thumbs down" vote. It's a focused examination.

I don't think that Roberts will persuade the other Justices away from strong ideological beliefs. However, he can persuade their decisions to be more focused. That, in effect, will temper some of those strong ideological beliefs.

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