But it will be, indisputably, the Roberts Court.
To the most casual courtroom observer, the change will be obvious. A vigorous 50-year-old, the youngest chief justice since John Marshall took the oath 204 years ago at the age of 45, will be seated in the center chair instead of his mentor, the 80-year-old William H. Rehnquist, who labored to breathe through a tracheotomy tube and consequently could speak only in short bursts during the last months of his life.
There will certainly be other changes, less visible and immediate, as Chief Justice John G. Roberts Jr. places his stamp on an institution he first knew as a law clerk 25 years ago. What they will be is less predictable, but there are at least some grounds for informed speculation.
For example, in his clerkship year, the court issued opinions in 123 cases. Last term, the number was 74. The shrinking docket has been a source of frustration to lawyers who practice before the court, among whom John Roberts was a star performer before he became a federal judge two years ago.
At his Senate confirmation hearing this month, he suggested that he saw room for the court to hear and decide more cases. If that comes to pass, reversing a 15-year trend, it could be an indication that Chief Justice Roberts is exerting influence on his colleagues just as Chief Justice Rehnquist, who thought the court was taking too many cases, managed to do in the opposite direction.
In running the "conference," the closed-door, twice-weekly meeting at which the justices discuss cases, Chief Justice Rehnquist prized efficiency and had little patience for extended conversation or second thoughts.
Some students of the court have attributed the lively and question-filled nature of the justices' oral argument sessions during the Rehnquist years to the fact that these sessions, one hour a case, provided the only occasion for the justices to interact at length as a group. If the justices now become more mellow on the bench, that could mean that the conference is giving them an opportunity for a real exchange of views.
The new chief justice will run the conference for the first time on Wednesday afternoon, when the justices will discuss and take tentative votes on the cases they hear on Monday and Tuesday. For lawyers who practice before the court, this transitional period presents an unusual challenge, in part because of the ambiguity of Justice O'Connor's position. It has been common in close cases for lawyers to pitch their arguments to Justice O'Connor, who often casts the deciding vote.
For as long as she remains on the court, she will hear arguments and vote on cases. But if a decision has not been issued by the time her retirement takes effect, her vote will not count. Her successor cannot vote retrospectively. Some important cases are therefore likely to result in 4-to-4 ties, giving the court the choice of rehearing the case or simply affirming the lower court opinion by the tie vote, an action that carries no precedential weight.
The court has already granted review in 48 cases, enough to fill the new term's argument calendar into February. The list includes cases likely to produce vigorous debates among the justices, leading to decisions that may help to define the Roberts Court. Abortion, religion, free speech, the death penalty and federalism are among the subjects at hand. The court's announcement on Tuesday that it was adding two campaign finance issues to the calendar raised the temperature of the new term considerably.
Appeals challenging Vermont's tight limits on candidates' spending provide an opportunity for the court to reconsider its 1976 decision, Buckley v. Valeo, that equated campaign spending with speech and has generally been interpreted as prohibiting such limits. The Vermont cases are Randall v. Sorrell, No. 04-1528, and Vermont Republican State Committee v. Sorrell, No. 04-1530.
The second campaign finance question is whether grass-roots advocacy groups should be exempt from limits that the McCain-Feingold law placed on political advertising paid from corporate treasuries in the weeks before Election Day.
Although the Supreme Court turned back a broad challenge to the law two years ago, that decision left uncertainty about whether a single-issue lobbying group, while organized as a corporation, could claim a First Amendment right to an exemption. The case is Wisconsin Right to Life Inc. v. Federal Election Commission, No. 04-1581.
The abortion case, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, with the argument scheduled for Nov. 30, raises substantive and procedural issues in the context of a New Hampshire law that requires girls younger than 18 to notify their parents or receive a judge's permission before obtaining abortions.
A federal appeals court invalidated the law because it lacked an exception for emergency situations. The Supreme Court has insisted that despite state-imposed restrictions, women must be able to terminate pregnancies that threaten their health. The case therefore poses a question about the breadth of the required "health exception." It also raises the procedural question of the circumstances under which an abortion law that has not yet gone into effect can be challenged in court.
Another abortion case reached the court last week, an appeal by the Bush administration of a ruling that invalidated the federal law that bans the procedure that abortion opponents call "partial-birth abortion."
Five years ago, the court struck down a similar law in a case from Nebraska, 5 to 4, with Justice O'Connor in the majority and Chief Justice Rehnquist in dissent. If the court accepts the new case, the argument will not be until next spring, placing Justice O'Connor's successor in a position to cast the deciding vote.
On Wednesday, the court will hear one of the term's most high-profile cases, the Bush administration challenge to the only state law in the country that authorizes physician-assisted suicide. The question in Gonzales v. Oregon, No. 04-623, is whether the Controlled Substances Act authorizes the federal government to revoke the federal prescription license of any doctor, following the Death With Dignity Act in Oregon, who gives a terminally ill patient a lethal dose of prescription drugs.
While the case is principally one of Congressional intent and statutory interpretation, it has the federalism overtones of the medical marijuana case in the last term, as well as the resonance of the debate over assisted suicide. In 1997, the court rejected the argument that there is a constitutional right to assisted suicide, but at the same time invited continued state innovation with policies on behalf of terminally ill patients.
Bringing the federalism debate directly back to the court, the government is appealing a ruling that states do not have to give their prison inmates the protections of the Americans With Disabilities Act. The case, United States v. Georgia, No. 04-1203, will be argued Nov. 9 and presents another challenge to Justice O'Connor's successor. She voted as part of the 5-to-4 majority two years ago in rejecting state immunity and applying the disabilities act to require accessible courthouses.
Another case the government has brought to the court lies, at least from one point of view, at the intersection of free speech and gay rights. The question in Rumsfeld v. Forum for Academic and Institutional Rights Inc. (FAIR), No. 04-1152, is whether the government can withhold or withdraw its financial support of an entire university if any school within the university does not grant military recruiters the same access to students granted to others who come to the campus with offers of employment.
Many law schools have restricted military recruiting because they disapprove of the policy that bars military service by openly gay men and lesbians. In response, Congress passed the Solomon Amendment, which requires equal access to campuses as a condition on the receipt of federal grants and contracts.