WASHINGTON – As Chief Justice John G. Roberts ( search) surely knows better than anyone, the cases that will be argued before the Supreme Court (search) this week are not likely the reason for the overflow of spectators before him.
The nation’s highest court opens a new era on Monday, when the 2005-2006 term begins with a brand new young head of the American judiciary sitting at the center of the bench. Roberts’ formal investiture as chief was taking place at the start of the new session before oral arguments begin.
President Bush was in attendance for the formal ceremony for Roberts, who was confirmed by the Senate 78-22 and sworn in at the White House last Thursday. After weeks in which some lawmakers accused the 50-year-old appeals court judge of being tight-lipped during his confirmation hearings, the nation will then get a glimpse into whether all the fuss was deserved.
Few court watchers expect to hear a monologue from Roberts on Monday, who had ample time to speak during his confirmation hearings even if he was accused of not saying enough.
The confirmation hearings have claimed much of Roberts’ time and with a short window in which to transition to a new job, he also faces the complication of a curious and eager press corps.
That being the case, it is unlikely the chief justice had very much time to study the three cases being argued before him on Monday: two companion cases about employee compensation and one regarding a states’ ability to tax an Indian reservation. On Wednesday, the court will also hear one of the most watched cases of the term, an appeal challenging an Oregon law allowing physician-assisted suicide.
But the eight other justices on the bench alongside Roberts will get a sense of how the new chief, who argued many cases before them as an attorney, will approach his new position as the court’s top administrator.
Roberts is filling the shoes of his predecessor, mentor and friend, William H. Rehnquist (search), who died on Sept. 3 at the age of 80. But he has already departed from Rehnquist in a few ways; for one, while he is keeping on three of the late chief’s clerks, he is bringing aboard two of his own from his previous job on the D.C. Circuit Court of Appeals (search).
Rehnquist’s clerks believed he always hired three of them per term to maintain his doubles tennis foursome. The associate justices are permitted four clerks; the chief justice is permitted five.
The associate justices must also be eager to see how Roberts will assign opinions, and whether he will increase the justices’ caseload, which was dramatically reduced under Rehnquist’s supervision.
Roberts’ staff is also likely anticipating what kind of personality Roberts ends up being. Most of the justices are held in great esteem by their clerks. In a conference on the jurisprudence of Justice John Paul Stevens (search) at Fordham Law School (search) on Saturday, his former clerk, Cornell University President Jeffrey Lehman, lamented having to let go of “the fantasy that the Supreme Court might just announce that law clerks are quasi-children of their justices.”
This personal affection is often built on the justices’ relationship to their clerks outside the work of vetting and granting certiori to cases. Just as Rehnquist played regular games of tennis with his assistants, Justice Sandra Day O’Connor (search), the first woman on the court, led her female clerks in aerobics classes.
O’Connor, 75, announced in July she would retire to care for her ailing husband. Bush initially nominated Roberts to succeed her, but after Rehnquist died, the president tapped Roberts to succeed the late chief instead. O’Connor agreed to stay on the bench until her successor is confirmed, and Bush is likely eager to relieve her of that obligation.
But a replacement may not happen anytime soon. O’Connor has been a crucial fifth vote on abortion, affirmative action and establishment clause cases, and Senate Democrats are likely more willing to protract the confirmation process this time around if Bush’s next nominee is not to their liking.
That may or may not happen. Bush announced his pick Monday before heading to the court. White House Counsel Harriet Miers was said to have been mentioned by Democrats and Republicans during the consultation process, but she has never served as a judge.
Stevens, at 85 the oldest member of the court, may have sensed the looming battle when he addressed the Fordham conference on Saturday. Explaining how his decisions had surprised even him, he said, “I know that I, like most of my colleagues, have continued to participate in a learning process while serving on the bench. … A judge’s pre-argument predictions should not be admissible in confirmations because they are inherently unreliable.”
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