Disorder in the Court

Ordinarily the Supreme Court is not very much like The View. You won't hear much of the Justices' inner thoughts, let alone their outer ones. And with the exception of perhaps the Dalai Lama or, in his day, Alan Greenspan, they are the only people in power who can deliver their opinions and then steadfastly refuse to elaborate on them. Everything about the court's rituals is meant to keep the Justices behind the red velvet curtains and their emotions in check.

The first year of the Supreme Court under John Roberts, though, has not been ordinary. As evidenced last week when the court struck down the Bush Administration's use of military tribunals, the Justices are suddenly unafraid to talk to one another in personal terms. "We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy," wrote Clarence Thomas in an impassioned dissent. Thomas felt so strongly--he called the majority decision "unprecedented and dangerous" -- that for the first time in his 15 years on the court, he read his dissent aloud. The ordinarily genial Stephen Breyer responded indignantly that the court did not "weaken our Nation's ability to deal with danger." Congress, he added, "has not issued the Executive a 'blank check.'"

The pointed back and forth was characteristic of the sometimes barbed, often unpredictable and really quite fun Roberts court. It began with a surprising number of unanimous decisions, but by the time it adjourned for the summer last week, in what Justice John Paul Stevens called a "cacophony" of discordant voices, the usual decorous costume drama that is a Supreme Court term had morphed into something much closer--in vitriol, tension and drama--to a soap opera (O.K., a PBS soap opera). Having spent 11 years without a change in personnel, the Justices were clearly rejuvenated by two new colleagues, Roberts and Samuel Alito, and the energy fueled their opinions. Although the alliances on the Roberts court are still fluid, even the longest-serving Justices are debating issues that matter to the American people--the limits of death penalty, the war on terrorism--with unusual passion.

Despite the impression left by its rush of final decisions, the Roberts court is, at least so far, less fractured than the court led for 19 years by William Rehnquist. Almost half its decisions this year had no dissents, compared with 38% in Rehnquist's final term, and the tally of 16 cases decided by a 5-to-4 vote is seven fewer than under Rehnquist. That is a tribute to the personality and leadership skills of Roberts, who has made issuing strong decisions and encouraging collegial debate top priorities. In a commencement speech at Georgetown University Law Center in May, Roberts opened with some high-quality lawyer jokes, then set out his goals as Chief Justice: unanimity or near unanimity, which he thought would promote "clarity and guidance for lawyers and lower courts trying to figure out what Justices meant."