PROVO The chief justice of an increasingly divided and conservative U.S. Supreme Court will speak today at Brigham Young University, three weeks into a new court term.
Chief Justice John Roberts, 52, will speak at a University Forum assembly at 11:05 a.m. in the Marriott Center. The speech is free and open to the public and will be carried live on television, radio and the Internet. Roberts will take questions from the audience after his speech.
In its new term, the Supreme Court has agreed to hear cases on major issues ranging from gun control and voting rights to the death penalty and Guantanamo detainees.
Roberts was 50 when President Bush nominated him as chief justice, the youngest chief since 1801, when John Marshall was sworn in at age 45. Roberts immediately became both the leader of the Supreme Court and its youngest member, and he set the ambitious goal of creating more harmony among the nine justices.
"Politics (in America) are closely divided," Roberts told The Atlantic magazine in a January 2007 article. "The same with Congress. There ought to be some sense of some stability, if the government is not going to polarize completely. It's a high priority to keep any kind of partisan divide out of the judiciary as well."
The article's secondary headline said, "Chief Justice John Roberts says that if the Supreme Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas."
At first, it seemed to work. In 2005-06, Roberts' first term, the court ran off more consecutive unanimous opinions than any senior court watcher could remember.
But his second term ended last spring with more 5-4 opinions than any term had produced in a generation, and some justices have leveled strong attacks on each other in writing those opinions.
"It is striking how conservative the court is now," the New York Times said on Sept. 30. "The court's hyper-partisan approach to the law is unhealthy."
Time magazine was even more descriptive on Oct. 11: "The warring factions of the Roberts Court and their pocked and smoking battlefields have made his talk of self-effacing harmony seem obsolete. ... Bombast, rhetorical excess and dueling opinions are thick as Pompeian ash."
Roberts is known as a bright, likable man. He argued a remarkable 39 cases before the Supreme Court when he was an attorney. In her book "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court," ABC reporter Jan Crawford Greenburg quoted one person saying Roberts was the best Supreme Court advocate of his generation.
As a federal judge on the D.C. Circuit Court of Appeals, Roberts found a harmony he hoped to replicate. He wrote 49 opinions while on that court. Only two were not unanimous, and he dissented from other judges' opinions only three times, according to www.oyez.org.
The current disharmony apparently is rooted in the shift that has taken place since President Bush put Roberts and Samuel Alito on the court within four months of each other. Both proved to be the judicial conservatives Bush long had promised he would deliver. The result is a court with four conservatives Roberts, Alito, Antonin Scalia and Clarence Thomas, all Catholics and four liberals John Paul Stevens, Stephen Breyer, David Souter and Ruth Bader Ginsburg.
Ronald Reagan intended the ninth justice, Anthony Kennedy, to be a conservative when nominated in 1988, but Kennedy's record instead often angered conservatives. In the last court term, however, he repeatedly sided with the conservatives, alarming liberals on and off the court. The swing to the right, analysts say, has led to the written jousting among justices.
That hasn't stopped Roberts from setting other precedents. The long tradition of the court is to hear each case for one hour, giving 30 minutes to each side for oral arguments. Earlier this month, Roberts extended a hearing to 80 minutes, a break with convention that shocked reporters. Greenburg had never seen it happen in 13 years covering the court and reported on her blog that the dean of Supreme Court reporters could not recall it ever happening before.
Roberts knew the late Rex Lee when both worked in Washington, D.C. in the early 1980s (see sidebar). That was after Lee was the founding dean of the BYU law school and before Lee served as the president of the university. Roberts spoke at BYU in 2002 at the Rex E. Lee Conference on the Office of the Solicitor General of the United States.
BYU President Cecil Samuelson met Roberts at a reception in Washington, D.C. last year when Provo resident and former BYU general counsel Thomas Griffith was sworn in as a federal judge on the D.C. Circuit Court of Appeals.
"Chief Justice Roberts mentioned that he had been to BYU previously and held our university and law school in high regard," Samuelson said. "I simply invited him to come again."
Roberts is speaking at BYU without a fee, which university officials said is customary for Supreme Court justices.
Justices are customarily quite private, but the Roberts Court has opened up new windows to its workings in recent speeches and in three major books this year Greenburg's earlier this year and two this fall, "My Grandfather's Son: A Memoir," by Justice Thomas and "The Nine: Inside the Secret World of the Supreme Court," by Jeffrey Toobin.
Scalia spoke a week ago at the law school of Villanova University, a Catholic university in Pennsylvania. He told the mostly Catholic audience they should not pine for judges who apply their religion to their work."If it's proper for Catholic judges to do that, it's proper for atheistic judges, for secularistic judges, for judges opposed to all Christian and religious beliefs to do the same thing," Scalia said, according to an Associated Press story.