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The Roberts Court, Version 4.0—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on Newyorktimes.com on October 2, 2010.

The Roberts Court, Version 4.0
By Linda Greenhouse ’78 MSL

When the Supreme Court begins its new term Monday morning, the fact that there are three women on the bench, thanks to the arrival of Justice Elena Kagan, will receive the most attention. But another fact about this first Monday in October should not go unnoticed. The three women and the six men who will emerge along with them from behind the courtroom’s velvet curtain at 10 o’clock constitute the fourth Roberts court.

Turnover on the Supreme Court has been unusually fast since John G. Roberts Jr. became chief justice five years ago, ending a period of 11 years with no change at all.
As the court’s personnel shifts, so does its collective personality, inevitably but not necessarily predictably. So on the eve of another First Monday, it’s worth taking a look back as well as forward.

The first Roberts court lasted only five months, from October 2005 through January 2006, while Justice Sandra Day O’Connor, awaiting confirmation of her successor, remained in place.

That brief honeymoon now seems a distant memory. Conflict was suppressed as the justices produced narrow opinions that papered over deep differences among them on such contested issues as abortion and federalism. Commentators celebrated the new chief justice as the consensus-builder he had vowed to try to be. More than half the term’s decisions were unanimous.

The second Roberts court began midway through the 2005 term with the arrival of Justice Samuel A. Alito Jr. This second phase was to last for nearly three and a half years. It did not take long for it to become apparent that conflict suppressed was merely conflict deferred. The brakes were off.

Almost as soon as Justice O’Connor left, for example, the court jumped into an issue she had resisted: whether school boards trying to prevent re-segregation can take race into account in student assignment plans. Despite the absence of any conflicting lower court decisions — the primary marker of a case the Supreme Court deems worthy of its attention — the court agreed to hear challenges to race-conscious plans in Louisville and Seattle. In its ruling on these cases, known collectively as Parents Involved, the court voted 5 to 4 to invalidate the plans.

The court thus began a rightward and almost entirely 5-to-4 march through its precedents that prompted Justice Stephen G. Breyer to declare from the bench on the final day of the 2006 term, “It is not often in the law that so few have so quickly changed so much.”

The third Roberts court, spanning Justice Sonia Sotomayor’s first term, ended quickly. By late spring, public attention had largely shifted to the new vacancy, and there have been few assessments of Justice Sotomayor’s early performance.

But two aspects are worth noting. One is that in every ideologically inflected case decided by a vote of 5 to 4, Justice Sotomayor voted, nearly always in dissent, with Justices Breyer, John Paul Stevens and Ruth Bader Ginsburg. These included most of the term’s most important cases, including the Citizens United campaign finance decision. Justice Anthony M. Kennedy joined the usual minority to create a 5-to-4 majority only once, upholding a public law school’s refusal to recognize a Christian student group that would not accept gay members.

The second notable point is that Justice Sotomayor voted for the rights of criminal defendants more often than any other justice except Justice Stevens. Her strongest opinion came in dissent in a case in which the court by a vote of 5 to 4 relieved the prosecution of much of the burden of demonstrating that a suspect had waived his Miranda rights. “Today’s decision turns Miranda upside down,” Justice Sotomayor protested on behalf of her allies in dissent.

Justice Sotomayor is a former prosecutor, and some progressive critics wondered at the time of her nomination whether she might have a pro-prosecution bias. Rather, her close-up look at the criminal justice system seems to have made her more aware of its failures.

On the other hand, the only other former prosecutor on the court, Justice Alito, is the current court’s most pro-prosecution justice. At the least, this contrast is a reminder that a résumé need not be destiny. Two people can draw very different lessons from similar experiences.

Much energy has been expended in the last few months in predicting what kind of justice Elena Kagan will be. It’s a fair question, but the larger question is what kind of court the fourth Roberts court will be.