Roberts Tackles Divisive Issues in First Cases

So far, Chief Justice John Roberts has led a harmonious Supreme Court, rallying colleagues to settle cases in the most limited, least controversial way. The question is whether that will last or has been just a short-term necessity for a changing court.

The first few months of Roberts' tenure have not been short on divisive issues: assisted suicide, abortion, capital punishment.

But cases decided so far have broken little new ground, and there have been no bitter dissents.

Of the court's 18 authored opinions so far, only two came from 5-4 votes. And three cases that were expected to split the court — on abortion, campaign finance and the rights of disabled inmates — were resolved unanimously without setting important precedent.

"One almost wonders why the court took the cases in the first place," Richard Pildes, a constitutional law professor at New York University, wrote online as he and other court watchers struggled over what to make of the early days of the Roberts era.

One explanation is the retirement of Sandra Day O'Connor, who was replaced Jan. 31 by Samuel Alito. The timing of the transition is awkward, because justices are nearly midway through a term and have heard arguments in more than half the cases they will rule on this year.

Alito may have to break ties in some pending cases, because whatever positions O'Connor took do not count anymore. It's not clear if any appeals have been deliberately held up to give Alito a chance to change the outcome.

"No court is going to reach out with huge decisions when it is quite clearly in transition," said Dennis Hutchinson, an expert on the Supreme Court at the University of Chicago.

Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, predicted that the cautious decisions will continue even with Alito on the bench.

"This is a court that's going to move incrementally. That seems to be John Roberts' style," Sekulow said.

Roberts, who just turned 51, succeeded William H. Rehnquist, who died last fall at age 80.

As the court's leader, he oversees private meetings, presides during the argument sessions, and assigns the writing of opinions when he is in the majority.

So far Roberts has disagreed with just two opinions, and he did not file his own dissent either time. One of the rulings upheld Oregon's one-of-a-kind assisted-suicide law from a challenge by the Bush administration. Another said states can be sued in bankruptcy proceedings.

In both, Roberts was on the same side as Justices Antonin Scalia and Clarence Thomas, the court's most conservative justices.

Roberts said during his Senate confirmation hearing in September that the chief justice should "act as a force to help bring about some cohesiveness and collegiality."

"I have told people, when pressed, that I prefer to be known as a modest judge," he also said.

The Roberts court, at this point, has been modest. Some examples, under his leadership the court:

—Dodged a decision on a parental abortion law from New Hampshire. On a 9-0 vote the justices said a lower court should reconsider whether the entire law was unconstitutional, or just part of it.

—Backed out of deciding whether a campaign finance law, in practice, violated free-speech rights of an anti-abortion group.

—Dismissed without explanation a police interrogation case.

—Passed up a chance to decide when inmates can use a federal disabilities law to sue states for not accommodating their disabilities.

Roberts, whose previous job was judge on the federal appeals court based in Washington, sometimes suggested ways that cases could be decided on limited grounds during the oral argument sessions.

"This is an even more extreme form of the kind of modest style of decision-making that Roberts had when he was on the D.C. Circuit," Pildes said in an interview. "One of the interesting issues to watch for now is whether this pattern will continue, or whether (now that) the court has a stable complement of justices it will shift back into issuing more sweeping opinions."

The first sign of the new court may come when justices meet for the first time with Alito instead of the moderate O'Connor. At the Feb. 21 session, justices could say whether they will hear arguments in several significant cases. Among them are the Bush administration's attempt to reinstate a ban on a type of late-term abortion and an appeal from an American terror suspect held without traditional legal rights.

The court also will have more rulings to announce. So far, Roberts has had just one opinion, although he likely has been working on several more during the court's monthlong recess.

"I imagine Roberts would like to be a consensus builder," said Stephen Wermiel, an American University law professor.