Topic: Bringing Consensus to the Court
Senator: Specter
Date: SEPTEMBER 14, 2005
Contents
SPECTER: Judge Roberts, let me move to one other subject in the two minutes that I have remaining, and that is on the ability which you would have, if confirmed as chief justice, to try to bring a consensus to the court.
We have 5-4 decisions as the hallmark of the court. It's not unusual. You commented yesterday about what Chief Justice Warren did on Brown v. Board of Education, taking a very disparate court and pulling the court together.
As you and I discussed in my office, there are an overwhelming number of cases where there are multiple concurrences.
SPECTER: A writes a concurring opinion in which B joins. Then B writes a concurring opinion in which A joins and C joins.
In reading the trilogy of cases on detainees from June of 2004 to figure out what we ought to do about Guantanamo, it was a patchwork of confusion.
I was intrigued by the comment which you made in our meeting about a dialogue among equals. And you characterized that as a dialogue among equals when you appear before the court, and they're on a little different level over there. I'm way behind you on Supreme Court arguments. It's 39-3. But I wouldn't have been an equal of theirs in any event; perhaps you are.
But I am intrigued by your concept. And I asked you how you'd be able to be the chief with Justice Scalia, who is 18 years older than you, and even Justice Thomas, who's seven years older than you.
Tell us what you think you can do on this dialogue among equals to try to bring some consensus to the court to try to avoid these proliferation of opinions and avoid all these 5-4 decisions.
Times up.
LEAHY: I'd like to hear the answer, because that's a question I was going to ask, too.
SPECTER: Well, now we're on Senator Leahy's time. Go ahead.
(LAUGHTER)
LEAHY: Oh, no, no. We're not on my time. We're not on my time. We're still on yours, Mr. Chairman. But I'd like to hear this answer.
SPECTER: It's permissible to have the answer on the red light, just not the question.
ROBERTS: Well, I don't want to be presumptuous about, if I am confirmed, what I would do.
I do think, though, it's a responsibility of all of the justices, not just the chief justice, to try to work toward an opinion of the court.
The Supreme Court speaks only as a court. Individually, the justices have no authority. And I do think it should be a priority to have an opinion of the court.
You don't, obviously, compromise strongly held views, but you do have to be open to the considered views of your colleagues. Particularly when it gets to a concurring opinion, I do think you do need to ask yourself, "What benefit is this serving? Why is it necessary for me to state this separate reason? Can I go take another look at what the four of them think or the three of them think to see if I can subscribe to that or get them to modify it in a way that would allow me to subscribe to that?"
Because an important function of the Supreme Court is to provide guidance. As a lower court judge, I appreciate clear guidance from the Supreme Court.
I think the last thing Chief Justice Rehnquist said in court, on the last day of the term, he was reading the disposition in a case and said, you know, "A reaches this conclusion. He is joined by B. And then C has a separate concurrence, joined by D and E." And he ended up by saying, "I didn't know we had that many judges on the court."
(LAUGHTER)
ROBERTS: And that undermines the importance of providing guidance.
I do think the chief justice has a particular obligation to try to achieve consensus consistent with everyone's individual oath to uphold the Constitution, and that would certainly be a priority for me if I were confirmed.
SPECTER: Thank you very much, Judge Roberts.
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