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How will the new court swing?

Questions about how long Sandra Day O'Connor will be there, and what kind of chief John Roberts will be add up to an intriguing session.

By BILL ADAIR
Published October 2, 2005

WASHINGTON - When the Supreme Court begins its new term Monday, Justice Sandra Day O'Connor will take her usual seat at the left elbow of the chief justice. For years, attorneys tailored their arguments to her because she often was the swing vote.

But this year, no one is sure how long O'Connor will occupy the chair or what role she will play on the court. With rookie Chief Justice John G. Roberts Jr. just starting and a brutal fight looming in the Senate over O'Connor's replacement, the new term has many question marks.

"It will be more chaotic than an ordinary term," said Edward Lazarus, a former clerk to Justice Harry Blackmun. "It adds an extra layer of difficulty for Roberts coming in as the new chief."

The changes come as the court considers high-profile cases involving physician-assisted suicide, campaign finance rules and a New Hampshire law requiring parental notification for minors seeking abortions. The changes will alter the strategy for attorneys because the court has not had a new face in 11 years.

"It's a year when it is going to be particularly difficult to make predictions," said Erwin Chemerinsky, who will represent the National Organization for Women in a case about protests at abortion clinics.

O'Connor is a wild card.

Legal analysts and attorneys with cases before the court aren't sure how long she'll stay or how active she will be.

In her July 1 letter to President Bush, O'Connor said she was retiring "effective upon the nomination and confirmation of my successor." Roberts was nominated to replace her, but he was elevated to chief justice when William Rehnquist died. President Bush is expected to nominate someone for O'Connor's seat in the next few days.

Walter Dellinger, a Washington attorney who frequently argues cases before the court, predicts O'Connor will be as active as ever.

"She will certainly participate fully," he said. "That is why she didn't resign (immediately)."

Her impact will depend on how soon her replacement is confirmed. That typically takes at least two months and this one could take even longer because Senate Democrats have vowed to fight if they believe the nominee is a conservative activist.

The Supreme Court has many rules, but none about lame-duck justices. The court's tradition, known by insiders as "the common law of the clerk's office," is that outgoing justices can take part in arguments and vote on cases until their last day.

But if the case is not handed down before O'Connor departs, her vote won't count. And the new justice cannot participate unless he or she was on the court when the case was argued. Because O'Connor often was the swing vote, that raises the prospect of 4-4 ties.

The remaining eight justices have two options: They can go with a tie, leaving the decision of a lower court unchanged, or they can have the case re-argued so the new justice can participate.

The court was shorthanded for seven months before Justice Anthony Kennedy started in February 1988. In that period, the justices announced four tie votes (including one involving minors' access to abortions) and decided to allow re-arguments in several other cases so Kennedy could cast the deciding vote.

David Garrow, a legal historian at Cambridge University who studies the Supreme Court, said many early cases won't be affected because they won't have close votes.

"The New Hampshire abortion case (to be argued Nov.30) is the first one that looms large," he said. "They could decide to postpone it."

It usually takes at least three months from the time a case is argued until the court issues an opinion, so a quick confirmation would minimize O'Connor's involvement in this year's cases. But if the Senate gets tied in knots about the nominee and O'Connor remains on the court early next year, she will have a more significant impact.

"For all we know, she may serve the entire term," Dellinger said.

Roberts is another question mark.

Although he clerked for then-Associate Justice William Rehnquist and has argued 39 cases before the court, he will have many new challenges as the nation's top judge.

"There is a very steep learning curve, even for someone as versed in constitutional law as Roberts is," said Lazarus, the author of Closed Chambers, an inside look at the court.

Roberts said relatively little about his judicial philosophy during his confirmation hearings. Jonathan Turley, a law professor at George Washington University, said senators seemed impressed by his answer on stare decisis, the practice of following legal precedents. "They didn't seem to realize that Roberts was merely reciting the definition of stare decisis from Black's Law Dictionary. "

Based on Roberts' answers and writings, analysts expect Roberts will be very similar to the man he's replacing.

"There's no question that Roberts will vote like William Rehnquist," said Turley. "If he swings, it will be from right to far right."

Still, no one can be sure. Justices serve for life and have occasionally voted quite differently than people expected.

The uncertainty with O'Connor and the rookie chief justice has scrambled the landscape for attorneys who will argue cases in the next few months. Should they target O'Connor? Or will she be gone by the time their case is decided? What arguments will appeal to Roberts? No one knows.

Chemerinsky, who will argue the case about abortion clinic protests on Nov.30, says he'll have to devise a new strategy. "You don't know who the new justice will be - or whether that justice will be there - and you have more uncertainly about John Roberts than you had with William Rehnquist."

--Information from the New York Times was included in this report. Washington bureau chief Bill Adair can be reached at adair@sptimes.com or 202 463-0575.

[Last modified October 2, 2005, 01:59:10]