New York Times
With O'Connor Retirement and a New Chief Justice Comes an
Awareness of Change
By LINDA GREENHOUSE
WASHINGTON, Jan. 26, 2006
Like many retirees, Justice Sandra Day O'Connor is downsizing.
This month, she packed up her chambers on the first floor of the Supreme Court
Building and moved to smaller quarters on the second floor, where she and
Justice Ruth Bader Ginsburg are the only occupants. Justice O'Connor's move is,
so far, the only tangible evidence of the latest change at the Supreme Court as
she prepares to leave the bench after nearly 25 years. But an awareness of
changes, great and small, permeates the atmosphere as the Roberts Court emerges.
Under Chief Justice John G. Roberts Jr., the justices' regular Friday
conferences, in which cases and tally votes are discussed, last longer. There
are no leaks from the justices-only meetings, which take place behind closed
doors, but it does not take a National Security Agency wiretap to conclude that
the new chief justice runs a looser, more talkative conference than his
predecessor, William H. Rehnquist, who was well known for keeping an eye on the
clock and chatter to a minimum.
Under Chief Justice Rehnquist, the justices' law clerks and secretaries usually
appeared in the Supreme Court cafeteria at noon, a sure sign that the conference
was over and that, having received their marching orders from their bosses, they
were free to go to lunch. Now, the cafeteria at noon on Fridays often stands
nearly empty.
The court soon may soon undergo even more change if Judge Samuel A. Alito Jr. is
confirmed, as expected, to succeed Justice O'Connor. The life of the court is in
its cases, and only in the past two weeks, nearly halfway through the term that
began in October, has the court begun to issue the kind of decisions that shed
light on the role Chief Justice Roberts is assuming among colleagues to whom he
was pitching his arguments as an advocate before he became a judge three years
ago.
In the 19 decisions issued so far, he has cast dissenting votes in two, one this
week in a federalism case and one last week that struck down the Bush
administration's effort to stop states from permitting physician-assisted
suicide.
Both votes placed him to the right of the court's current center of gravity.
That center is, of course, likely to shift rightward, assuming that Judge Alito,
whose nomination was sent to the Senate this week by the Judiciary Committee, is
Justice O'Connor's successor.
In contrast to those split votes, the court in recent weeks has resolved three
cases, potentially even more contentious, with swift, narrow and unanimous
decisions that seemed to embody the ''judicial modesty'' that he invoked as a
byword during his confirmation hearing.
Addressing abortion, campaign finance and federalism, none of those opinions
were more than 10 pages long and none even tried to resolve the court's deep
divisions on these subjects. So the most plausible explanation is that these
opinions represent only a temporary truce, a collective decision not to turn a
shifting landscape into a battleground.
The court has also deferred deciding whether to add some major new cases to its
docket. These include the Bush administration's appeal on the constitutionality
of the federal Partial-Birth Abortion Ban Act and Jose Padilla's challenge to
his designation and confinement as an enemy combatant, an appeal the
administration argues is moot after his transfer from military to civilian
custody. Both cases were ready for review this month, but the justices took no
action.
For Justice O'Connor, there have been no official goodbyes. She attended the
justices' Friday conference last week, almost certainly her last with the court
now on a midwinter recess. There were no speeches, no toasts.
As the justices announced their opinions from the bench on Monday, neither Chief
Justice Roberts nor any other member of the court gave any sign that this was
probably the last time that the F.W.O.T.S.C. (as the first woman on the Supreme
Court occasionally identified herself) would join them there. She spoke in a
strong voice, reading an opinion for Justice John Paul Stevens, who was absent,
but she was teary-eyed when she left the bench.
The fact is that formal farewells would be premature because she is still a
Supreme Court justice until her successor takes the oath of office. She opened
the new year as grand marshal of the Rose Bowl Parade, and it is impossible to
imagine her not keeping busy. In fact, her calendar is full. She will teach for
a week this winter at the University of Arizona Law School in Tucson, filling a
spot that her friend and fellow Arizonan, Chief Justice Rehnquist, held for many
years. Chief Justice Rehnquist, who died in September at 80, usually spent two
weeks of the winter recess at the law school.
Justice O'Connor, 75, is also working on a conference on the state and future of
the federal judiciary, to be held next September at the Georgetown University
Law Center.
Her new chambers on the second floor are modest, most recently used for
administrative office space, overlooking an interior courtyard. As a courtesy,
retired justices are offered space at the court or in the nearby Thurgood
Marshall Federal Judiciary Building. They are also permitted to retain one law
clerk, which Justice O'Connor plans to do.
Although they no longer participate in official court business, retired justices
often use their court space as a place to write and study. They have also been
known to help decide cases as visiting judges on the nation's federal courts of
appeal.
Judge Alito's imminent confirmation will deprive Justice Stephen G. Breyer of a
record that one strives to earn: the longest-serving junior justice in the
court's history. Justice Breyer was sworn in on Aug. 3, 1994. Had he remained
the junior justice until March 1 of this year (as chief justice, John Roberts is
automatically senior to all the other justices) he would have broken the record
set by Justice Joseph Story on Sept. 1, 1823, the date that Justice Smith
Thompson took the oath of office.
Justice Breyer is, however, not without consolation. At least he will finally be
able to give up the junior justice's particular duty, opening the door to accept
messages from the outside during the justices' conferences.