Very Little ‘Versus’ Yet in Roberts’ High Court

Chief Justice John G. Roberts Jr., in less than six months as leader of the Supreme Court, has turned the famously quarrelsome justices, at least for now, into a surprisingly agreeable group that is becoming known for unanimous rulings.

Monday’s decision rejecting a free-speech challenge to having military recruiters on college campuses marked the ninth consecutive ruling in which all of the justices agreed.

Among the decisions were those on such normally contentious issues as abortion protests, religious liberty, the death penalty and antitrust law.

In January, before the current streak of unanimous rulings, the high court decided this term’s two other abortion-related cases; those too carried no dissents.

The outbreak of harmony has lawyers and law professors wondering whether they are seeing a court transformed or a honeymoon for the chief justice.

“I think it is a real phenomenon, and it’s because of the new chief,” said Georgetown University law professor Richard J. Lazarus. “As the court begins to define itself anew, there is a real effort by all of them to build a new court. And it has brought them together.”

The justices have joined to find compromise solutions in several cases. In others, they have found they could agree on a legal result, even if it did not fit a liberal or conservative mold.

And to a surprising degree, the justices -- both liberal and conservative -- have resisted the temptation to write dissents.

In a recent abortion case from New Hampshire, conservative Justices Antonin Scalia and Clarence Thomas signed on to an opinion that quoted Roe vs. Wade and said states could not restrict access to abortions when the health of the mother was at stake. The ruling revived a state law that requires minor girls to notify their parents before having an abortion.

Last week, in another abortion-related ruling, liberal Justice Stephen G. Breyer wrote the opinion saying that racketeering laws did not extend to abortion protests, even if they turned violent.

Two weeks ago, Roberts spoke for the court and gave a mild rebuke to the Bush administration for its refusal to allow a small Brazilian sect in New Mexico to serve hallucinogenic tea at religious services.

Within the court, this was known as the “high tea” case. But his opinion made an important statement about religious liberty. Federal authorities cannot infringe on religious practices unless they have a truly compelling reason for doing so, Roberts said.

The leaders of the sect had asked customs agents to make an exception to drug laws and permit them to import a small quantity of the tea for their services. The government’s refusal, Roberts said, “echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.”

The chief justice and his colleagues ordered the government to make the exception in this case.

Roberts writes in clear, simple sentences that carry a punch. For example, the Solomon Amendment, which requires colleges that accept federal money to permit military recruiters on campus, was challenged by some law professors as a free-speech violation.

The amendment “regulates conduct, not speech,” Roberts wrote in Monday’s opinion. “It affects what law schools must do -- afford equal access to military recruiters -- not what they may or may not say.”

His supporters say they are not surprised that the chief justice has gotten off to a good start.

“The high hopes that many of us have for Chief Justice Roberts were and are well-founded,” said Notre Dame law professor Richard W. Garnett, a former court clerk. “This year, the whole court seems to be willing to go along with clear, concise, yet not very sweeping decisions. Some of these cases had the potential to be controversial, but they are focusing on the issues they agree on.”

Normally, the justices hand down more unanimous decisions early in their annual term and hold off on the sharply divisive cases until May or June. In the last week of June, the term typically ends with a series of 5-4 rulings.

This term has gotten off to an unusually harmonious start. There have been 29 written opinions, 21 of which were unanimous. At this time last year, the court had handed down 21 decisions, and 10 were unanimous.

Roberts’ experience as a regular advocate before the high court appears to be serving him well in his new post.

In the past, the court’s rookie justices usually sat quietly on the bench for the first months, as if unprepared to plunge into the fast-moving arguments. Roberts has played the lead role in arguments from the beginning.

“It’s been a long time since anyone has gone to the court with this much experience as a Supreme Court advocate,” said Lazarus, a liberal-leaning environmental law expert who was a roommate of Roberts’ in 1980 when the two Harvard law grads first moved to Capitol Hill.

No one expects harmony to reign when the justices confront the harder questions on abortion, such as the upcoming challenge to the federal ban on the procedure that critics call “partial-birth abortion.”

Nor is Roberts’ voting record likely to comfort liberals. During recent oral arguments, he suggested he wanted to cut back on the reach of the Clean Water Act, wanted to strike down all campaign spending limits, and would vote to uphold the controversial Texas redistricting plan promoted by then-House Majority Leader Tom DeLay (R-Texas).

Even so, his quick wit and calm manner have come in handy.

During an argument in late October, a loud pop was heard in the courtroom, as if a shot had been fired. A light bulb in the ceiling had exploded and sent glass raining down. The chief justice explained to the startled audience, “This is a trick they play on new chief justices all the time.”

During an oral argument last week, Scalia answered a question posed to a Texas lawyer by Justice John Paul Stevens. And Stevens in turn questioned the answer supplied by Scalia.

After an awkward moment, Roberts smiled and turned to the lawyer at the lectern and said, “You’re welcome to jump in here.” It was a nice way of saying to both of the older justices they should back off and let the lawyer answer the questions from the bench.