Justices Have Differing Views of Order in the Court

By Robert Barnes
Washington Post Staff Writer
Friday, September 4, 2009

How seriously do they take change over at the Supreme Court? Very seriously.

It's not that the justices won't welcome Sonia Sotomayor as one of The Nine. But it sounds as if the prospect of a third new justice in four years is a bit traumatic -- even to one of the new justices.

"To some extent, it's unsettling," Chief Justice John G. Roberts Jr. told C-SPAN as part of a series of broadcasts the network plans about the court. "You quickly get to view the court as . . . composed of these members, and it becomes kind of hard to think of it as involving anyone else. I suspect it's like people look at their families." Roberts is approaching his fourth anniversary on the court.

"It's stressful for us because we so admire our colleagues," added Justice Anthony M. Kennedy. "We wonder, oh, will it ever be the same?"

C-SPAN is scheduled to begin broadcasting the series Oct. 4. But because Sotomayor will take the bench for the first time on Sept. 9, in a special hearing about the constitutionality of a campaign finance law, the network released some of the footage early, on Thursday.

This particular Supreme Court might be more averse to change than others, thanks to a recent period of stability. After Justice Stephen G. Breyer took the bench in 1994, the court went 11 years without a new member.

"As far as the composition of the court, you're bringing in basically -- and this word can be overused -- you're bringing in a family member," said Justice Clarence Thomas, who had served his entire career on the court with the man Sotomayor replaces, retired justice David H. Souter. "It changes the whole family. . . . You have to start all over. The chemistry is different."

Justices insist their friendships are deep despite competing judicial philosophies. Asked what she would tell the new justice, Ruth Bader Ginsburg replied: "I would say you will be surprised by the high level of collegiality here. This term, I think we divided 5 to 4 in almost one-third of all the cases. One might get a false impression on that degree of disagreement."

Some justices do acknowledge that new blood can be good. "It can cause you to take a fresh look at how things are decided," Roberts allowed. "The new member is going to have a particular view about how issues should be addressed that may be very different from what we've been following for some time."

Kennedy had a slightly different take: "It gives us the opportunity, again, to look at ourselves to make sure that we're doing it the right way so that the new justice will be able to take some instruction from our example."

In the interviews -- all but one conducted after Sotomayor was nominated but before she was confirmed -- there was special note of the new justice being the court's third female member (108 men have been appointed to the court). Retired justice Sandra Day O'Connor, the first woman, reiterated her displeasure that she had not been replaced by someone of her sex -- "I've often said it's wonderful to be the first to do something, but I didn't want to be the last" -- and noted that it took more than 10 years after her confirmation for Ginsburg to join the court. It was another 16 years before Sotomayor.

And O'Connor spoke of an age-old problem: what to wear. "I didn't know anybody who made robes for women justices, and I think most of what was available was something like a choir robe or an academic robe." She ended up wearing a plain black one from her days as a judge in Arizona -- and then was criticized for not wearing some sort of judicial collar underneath it.

She recalled a note from someone who said she "looked like a washed-out justice."

Ginsburg showed off a lace collar she said was from South Africa. "You know, the standard robe is made for a man because it has a place for the shirt to show, and the tie," Ginsburg said. "So Sandra Day O'Connor and I thought it would be appropriate if we included as part of our robe something typical of a woman. So I have many, many collars."

Justice Samuel A. Alito Jr., the last before Sotomayor to join the court, seemed to have the most reason to welcome her. Asked about the "special privileges and responsibilities" of the rookie member, he quickly replied "I don't think the junior justice has any special privileges." He noted the newest member must answer a knock at the door when the justices are in their private conference, and, because no staff members are present, take the official notes of their decisions.

He also noted that the junior justice is the last to speak and the last to vote in those conferences. "By the time they got to me, I was either irrelevant or I was very important, depending on how the vote had come out," he said.

© 2009 The Washington Post Company