Though the faces will be the same, the Court that appears from behind the curtain on October 1 will not be the one that vanished behind it on June 28. The last Term will have rearranged relationships, alliances, and lines of power. The Court is now, in fact as well as name, the Roberts Court. The Chief Justice is the premier player both sides must deal with. His ascent may coincide with a significant fall.
October 1 may be the first day of the post-Scalia era.
I have flashback dreams of the agonizing 2011 term. The "Most Amazing Words Uttered in Court" competition was fierce last year. There was "There's a bare buttock there, and there's a bare buttock here," uttered solemnly by Seth Waxman, representing ABC in the "dirty words" case, as he pointed to nude gods and warriors on the frieze decorating the courtroom.
There was "No, they couldn't do it," intoned with a straight face by Michael Carvin, the lawyer for the National Federation of Independent Business. Justice Stephen Breyer had asked him during the health-care argument whether Congress could require vaccinations if it knew that an epidemic would otherwise kill 50 percent of the population. Nope, said Carvin; the apocalypse would be "a local matter."
There was "Well, don't obligate yourself to that," tossed off by Justice Antonin Scalia to Solicitor General Donald Verrilli during the health-care argument. Verrilli was noting that uninsured patients receive medical care they can't pay for because of "social norms to which we've obligated ourselves." Scalia suggested that the whole mandate mess would go away if we let the uninsured die on the hospital steps.
But for me the winning words were: "That's enough frivolity for a while," uttered by the Chief Justice to Scalia during the final day of the health-care marathon. Scalia had interrupted argument of this generation's most important case to begin riffing on an old Jack Benny radio routine. The Chief Justice was not amused. He shot a venomous look at Scalia and told him, in barely civil words, to shut up. That same look flickered across Roberts's face on June 25, when Scalia embarrassed the Court with his rant against Obama during the opinions on the Arizona case. (That monologue, I think, may have been the inspiration for Clint Eastwood's speech in Tampa.)
For years it has been clear that Antonin Scalia assumes he is the smartest, funniest, most important person in any room. I don't think John Roberts agrees.
I sort Justices, present and historic, into four categories. There are solid votes, whose position is not in doubt. They tend not to influence others. Justice Clarence Thomas is a solid vote. Second, there are swing votes, like Justice Anthony Kennedy, and, on occasion, Justice Breyer. They can be coaxed across the line by concessions; or they may write separate narrow concurrences. Third, there are influences, who by force of argument gradually reshape whole areas of law. And finally, there are playmakers, who put together coalitions that determine both results and rules. Their arguments are less important than their ability to count to five. Justice William Brennan was the greatest playmaker of our time; Justice John Paul Stevens gradually learned the art as well. On today's Court, as we learned last June, Roberts is becoming one.