The New York Times

November 9, 2005

Supreme Court Memo

Advice to the Chief Justice: To You, I'm Known as Nino

By LINDA GREENHOUSE
WASHINGTON, Nov. 8 - At the end of the first week of the Supreme Court's new term, the justices assembled to discuss the week's cases, and, following protocol, Chief Justice John G. Roberts Jr. stated his own views first. Then, in keeping with the court's tradition for the justices-only conference, the new chief called on the others, one by one.

He did so in order of seniority, referring to his colleagues in the most formal terms. First, "Justice Stevens," followed by "Justice O'Connor" and then "Justice Scalia."

Justice Antonin Scalia interrupted. "I will always call you Chief," he said. "But to you, I'm Nino, and this is Sandra, and this is John."

This vignette, described by Justice Clarence Thomas at a judicial conference in Colorado Springs late last month, is deliciously revealing of a Supreme Court in the midst of a generational shift.

John Roberts was a 25-year-old law clerk and John Paul Stevens was beginning his fifth year as a Supreme Court justice when the two first met. In the 25 years that followed, the younger man became a familiar figure to the justices as he appeared before them dozens of times, building a reputation as one of the most skilled and sought-after Supreme Court practitioners.

But by their very nature, these courtroom meetings were not meetings of equals. Now when John Roberts joins the other justices on the bench or around their conference table, he is not only their equal, but first among them.

Although Chief Justice Roberts has appeared at ease in the courtroom from the moment he took his seat on the first Monday in October, the transition can only have been dizzying. Just months ago, he was a court of appeals judge who took the subway to work. Now he is called for each morning and delivered home at night in a Supreme Court car.

By his choice, it is an ordinary car, a sport utility vehicle, in contrast to the limousine used by his predecessor, Chief Justice William H. Rehnquist. The limousine has gone the way of the four gold stripes that the "old chief," as the late chief justice is now almost universally referred to within the court, had added to each sleeve of his judicial robe. Still, the car and driver is a perquisite enjoyed by none of the other justices, who drive themselves to work in their own cars.

If an institution can be said to have a mood, the court's is almost palpably cheery. Justice Ruth Bader Ginsburg and her husband of 51 years, Martin, appeared at a formal dinner the other night, laughing and kidding with each other like two teen-agers on a date.

Justice Thomas, whose silence on the bench has lasted for weeks or months on end, asked questions on two occasions during a single argument on Tuesday morning.

And Justice Stevens turned stand-up comic on Tuesday as the court handed down the first two decisions of the new term. Both were unanimous opinions in low-visibility cases that were argued in October. Neither was made for gripping reading.

Usually, justices rely on a standard formula when they announce their opinions, briefly describing the facts and the holding and concluding that "for reasons stated at greater length in an opinion filed with the clerk this morning," the judgment of the lower court has been either affirmed or reversed.

But Tuesday morning, Justice Stevens offered his own variant when he announced his opinion for the court in IBP Inc. v. Alvarez, a labor law decision requiring employers to pay their workers for time spent "doffing and donning" required safety gear. After describing the decision, he concluded, "For reasons stated in a remarkably interesting 20-page opinion filed with the clerk. ..."

One court official commented after the morning's session, "They're loose on the bench, and they're loose behind the bench."

The explanation for the court's mood is no mystery. It is relief. The justices who lived through the long year of Chief Justice Rehnquist's battle with thyroid cancer are survivors of a collective trauma, the dimensions of which are obvious only in retrospect.

It was just over a year ago, during a brief recess in late October, that the justices learned that their chief had been stricken with a potentially fatal illness. He told them he would be back at work in a week. But it would be five months before he returned to the bench, weakened and breathing through a tracheotomy tube.

During those months and the ones that followed, until his death on the Saturday of Labor Day weekend, the other justices knew no more about his condition and prognosis than did the rest of the country. At their final conference on June 27, the last day of the term, the elephant in the room was the looming question of whether the chief justice would be back on the bench when the court reconvened in the fall. But he said nothing, and no one asked.

The justices went their separate ways for the summer. The next time they gathered again as a group, they were standing by his coffin in the court's Great Hall. John Roberts was there, too, not in his capacity as a Supreme Court nominee but among the other former Rehnquist law clerks who were serving as pallbearers.

Flash forward barely two months to an ordinary argument day in the courtroom, when a light bulb above the bench suddenly exploded with a jarring bang that brought court police officers to their feet. There was a tense silence before the benign explanation became clear. It was "a trick they play on new chief justices all the time," Chief Justice Roberts commented.

The incident occurred on Halloween, not a day when the chief justice could linger in his chambers. He had to get home, where, disguised as Groucho Marx, this father of two young children greeted the neighborhood trick-or-treaters at his front door.