Roberts, The Uniter

Posted: Mar 24, 2006 9:04 AM

How to begin? We're talking today about the Supreme Court under Chief Justice John Roberts. Are you ready for a really titillating bulletin? Here it is:

Thus far in its current term, the high court has handed down signed opinions in 47 cases. Nineteen of these have been decided by unanimous consent. Justices John Paul Stevens and Clarence Thomas, the court's leading dissenters, have been remarkably mum. Something is going on: The court under Roberts may be getting kinder and gentler.

Don't bet on that heady prospect. The worst is yet to come, as the court grapples with such divisive issues as development of wetlands and regulation of abortions. The court's newest member, Justice Samuel Alito, has yet to deliver his maiden opinion.

Take a look at precedent: During the term that ran from October 2004 through June 2005, the court split 5-4 in no fewer than 24 of the 74 cases decided by signed opinions. It reached unanimity only 17 times.

What a difference a new chief can make! Since the current term began in October, the court has split 5-4 only twice -- and both of those cases, as they say, were dogs. Only the lucky lawyers could love them.

Justice Antonin Scalia wrote for the court in a 5-4 split that involved a death sentence imposed in California upon Ronald P. Sanders. He had brutally murdered a young woman in the course of a robbery. There was no question of his guilt. The pivotal issue turned upon the "special circumstances" found by a jury in the sentencing stage. Scalia often bites off a colleague's head in a footnote, but here he fenced with a buttoned foil. On the other side, speaking for the dissenters, Stevens was equally on his best behavior: "It may well be," he mused, "that the errors in this case were harmless." This was from Stevens?

The second 5-4 decree came two weeks later in Central Virginia Community College v. Katz. Arf, arf! This is all you really need to know about this other pup: It involved the immunity of a state-supported college from suit under the Bankruptcy Code. This time Stevens, the court's most senior justice, was writing for the majority. He was in his chatty mode. A Philadelphia case in 1786, he recalled, was argued by Jared Ingersoll, a delegate to the Convention of 1787. Dear Ingersoll! He knew him well.

Justice Clarence Thomas, joined by Scalia, Roberts and Justice Anthony Kennedy, was not to be lulled by reminiscence. He was chewing nails and breathing fire, to wit: His Brother Stevens' conclusion "cannot be justified by the text, structure or history of our Constitution." Moreover, "The majority greatly exaggerates the depths of the Framers' fervor to enact a national bankruptcy regime." Strong stuff.

Ordinarily the court disposes of only four or five cases every term by substantial opinions "per curiam." These are unsigned mandates, issued "for the court." The Anonymous Nine already have delivered eight PCs since October, and the term still has 14 weeks to go.

One of the per curiams came on Nov. 28 in an 18-year-old murder case from Ohio. It involved an attempt by Kenneth T. Richey to kill his ex-girlfriend and her new consort by setting fire to her apartment. As it sadly transpired, they were sleeping elsewhere. Her 2-year-old daughter died in the fire. Richey was convicted of murder on a theory of "transferred intent" and sentenced to death. The Supremes faulted the 6th Circuit's handling of the case and sent it back for what is known politely as "further proceedings."

On the morning of Feb. 21 the court erupted with three substantial per curiams. The most newsworthy -- and it wasn't very newsworthy -- involved a suit brought by two black employees of Tyson Foods in Alabama. The workers charged the company with illegal discrimination in passing over them for promotion. They won in the trial court, partly upon evidence that a Tyson supervisor had addressed each of them as "boy." Finding the appellation possibly benign, the 10th Circuit reversed.

In their per curiam opinion, the justices reprimanded the circuit judges for their "unhelpful and imprecise" decision and sent the case back for them to try again.

So it goes -- so far -- in the honeymoon months of the Roberts Court. Will the billing and the cooing continue? It will last until the first big abortion case can no longer be ducked.