Chief Justice Roberts takes aim at Stevens in dissent

WASHINGTON — When Chief Justice John Roberts took his center seat for the first time in October 2005, John Paul Stevens, the court's senior justice, wished him "a long and happy career in our common calling."

This week, Roberts had some words for Stevens, who turned 87 last week. And they were not nearly so kind.

In a pointed dissent from decisions overturning death sentences for two Texas inmates, Roberts accused Stevens of engaging in revisionist history.

Stevens, leading a five-justice majority, said Texas state courts should have set aside the death sentences because the Supreme Court had made clear that such sentences could not stand if they were imposed as a result of flawed jury instructions that Texas used until 1991.

Roberts, a dissenter in six of the court's 10 most recent rulings, wrote that contrary to being clear, Supreme Court death penalty law over the years has been a "dog's breakfast," a mess of "divided, conflicted and ever-changing analyses." State courts would find it difficult, if not impossible, to discern federal law from those rulings, he said.

Roberts concluded his 16-page dissent on a sarcastic note, at odds with his amiable image. "Still, perhaps there is no reason to be unduly glum," Roberts said, taking direct aim at Stevens. "After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views established in that dissent actually represented 'clearly established' federal law at that time. So there is hope yet for the views expressed in this dissent."

"Encouraged by the majority's determination that the future can change the past, I respectfully dissent," he concluded.

Justice Anthony Kennedy, by contrast, is having the kind of year most judges only dream about.

It is not just his recent star turn as the presiding judge in the trial of Hamlet at Washington's Kennedy Center for the Performing Arts, either.

Kennedy is a robust 31-1 in signed opinions issued since the court began its current term in October. He is 12-0 in 5-4 cases, the only justice in that narrow majority each time in cases concerning abortion, the death penalty and global warming.

Kennedy has been in the majority nearly 97 percent of the time. Justice David Souter, who has dissented five times, is second at 84 percent.

At the other end are Justices Antonin Scalia and Clarence Thomas. Despite the more conservative bent of this court, Scalia and Thomas have dissented 12 times each, putting them in the majority in just over 60 percent of the court's cases so far.