New York Times

March 7, 2007

Reporter’s Notebook

As to the Direction of the Roberts Court: The Jury Is Still Out

By LINDA GREENHOUSE
 
WASHINGTON, March 6 — Over the Presidents’ Day weekend, Douglas W. Kmiec went to a popular legal Web site, Findlaw.com, to post his thoughts on the Supreme Court at midterm.

Mr. Kmiec, a law professor at Pepperdine University, had nothing but praise for Chief Justice John G. Roberts Jr., his onetime government colleague from the Reagan administration days. The chief justice was “splendidly” on course toward his professed goal of getting the court to “speak with one voice,” Professor Kmiec wrote, noting that 11 of 14 cases decided so far had been 9 to 0.

Unanimity “adds both credibility and stability to the law,” he wrote, adding that under its new chief justice, it was evident that “the court is more likely to reach” that desirable measure of agreement.

The day after Professor Kmiec offered that assessment, the court came back from a four-week recess and issued two 5-to-4 decisions.

“I have the same effect on the stock market,” Professor Kmiec said in rueful conversation a few days later.

His follow-up essay, posted on Slate and titled “Up in Smoke,” went directly to the point. “The Roberts honeymoon may be over,” he wrote.

The cautionary tale was clear: for anyone tempted by the joys of punditry to proclaim that the Roberts court is clearly one thing or another, this is a time to sit back, wait and see.

It is not only that the term’s most challenging decisions lie ahead, rulings on abortion and school integration that will almost certainly reveal fissures too deep to paper over. It is that the Roberts court’s record so far is being asked to carry more weight than it usefully can for those trying to take the new chief justice’s measure.

Numbers do not lie, but out of context, they can easily mislead. For example, much was made of the court’s unanimity during the last term, which was the first for the Roberts court. About half the decisions were unanimous (49 percent by one count, 53 percent by another: the difference is over whether to ascribe unanimity to justices who disagree on the reasoning behind a 9-to-0 outcome). So far this term, the record is about the same, 8 out of 18.

One factoid that may actually prove significant: of the four 5-to-4 decisions so far this term, the only justice in the majority in every case was Anthony M. Kennedy, powerful ammunition for the view that in a crunch, this is Justice Kennedy’s court.

Filling the Docket

The justices were so mortified at finding themselves without enough cases to fill their December calendar that they used the most obvious means to avoid a repetition: they stepped on the gas.

After granting only two new cases in November and eight in December, they lowered the bar in January and somehow found 20 cases worthy of their attention. This led to a crowded April calendar reminiscent of the time 20 years ago when the court routinely sat for afternoon arguments as well as morning ones and turned out 150 decisions a year, more than twice the current number.

The result is a see-saw argument schedule, with only one case a day for much of February and March, but three for most of the days the court will sit in April.

The problem for the justices is that April is the final argument month, presenting a substantial challenge if cases are to be decided by late June, when the court breaks for the summer.

The time pressure could be even more acute if the court agrees to an expedited schedule for deciding the cases on the rights of the detainees at Guantánamo Bay, appeals that were filed at the court on Monday with a proposed argument date of May 7.

The justices might plausibly have held some of the April cases over for argument when the new term begins in October, easing some of the pressure they often feel then to get a fast start on filling the calendar. But that idea, championed by some at the court, was rejected because it would have guaranteed that the total number of decisions for the current term, now hovering at about 70, would have fallen into the mid-60s. Life tenure, evidently, is no insulation from concern with one’s image.

Alarmism in the Blogosphere

Jan Crawford Greenburg, an ABC News correspondent who covers the court, posted a startling item last week on her blog, Legalities. Under the heading “Faith and Frailty,” she wrote that the “real drama” of an argument concerning the Bush administration’s religion-based initiative came when the argument ended.

Justice Ruth Bader Ginsburg’s delay in getting to her feet and leaving the bench, Ms. Greenburg wrote, seemed a sign of possible ill health and “made me think I’d better start pulling those possible retirement files together.”

The alarming item quickly made its way around the blogosphere, puzzling court insiders who know that Justice Ginsburg, 73, is in fine health and keeps to a schedule that would exhaust most people who are decades younger. When the term ends this summer, for example, she is scheduled to go to Paris with Chief Justice Roberts, Justice Kennedy and Justice Stephen G. Breyer for meetings with judges of French and other European courts.

The explanation is, quite literally, pedestrian. According to her chambers, Justice Ginsburg had kicked off her shoes during the argument and could not find one of them.