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Justices Roberts, Alito to Have New Visibility in High Court

Roberts's Pivotal Role

Justice Samuel A. Alito Jr., left, and Chief Justice John G. Roberts Jr. could have greater impact in the court's new term.
Justice Samuel A. Alito Jr., left, and Chief Justice John G. Roberts Jr. could have greater impact in the court's new term. (By Lucian Perkins -- The Washington Post)
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But Dellinger and others expect Roberts, 55, to play a pivotal role that often eluded Rehnquist, his mentor and predecessor.

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"With each passing term, Chief Justice Roberts may take an increasingly muscular role on the court," Dellinger said "Unlike any other chief justice, he comes to the position from a professional career as a Supreme Court advocate in which he excelled at persuading five justices to agree with his position."

The term might also be noteworthy for the relationship between the three branches: an administration headed by a Democratic president with an ambitious agenda dependent on a wide expansion of government programs; a Congress firmly controlled by a staunchly liberal Democratic leadership; and a court in which six of the nine were appointed by Republican presidents.

Some discord was on display during Sotomayor's confirmation hearings, where liberal Democratic senators excoriated Roberts and Alito.

"For all the talk of modesty and restraint, the right-wing justices of the court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights," Sen. Sheldon Whitehouse (D-R.I.) said in a typical complaint.

Robin S. Conrad, head of the litigation arm of the U.S. Chamber of Commerce, points out that one of the first acts celebrated by the Democratic leadership and Obama was the Lily Ledbetter Fair Pay Act, which nullified the court's ruling about how quickly discrimination lawsuits must be filed.

"We're very interested in the emerging relationship between the justices and Congress," she said at a briefing about the chamber's legal priorities. "We've seen several instances over the last few years where Congress has introduced legislation to nullify specific Supreme Court decisions."

But the court avoided a showdown with Congress and the administration last year over a key provision of the Voting Rights Act. The justices sharply questioned whether lawmakers had made the case for extending the act, but it found narrow grounds for deciding the case, and it left aside constitutional questions.

Paul D. Clement, solicitor general in the George W. Bush administration, said that he does not see increased friction between the court and Congress and that he thinks Democrats' criticism of Roberts and Alito is not unusual.

Republican senators might have had the same concerns about Justices Ruth Bader Ginsburg and Stephen G. Breyer, appointed by President Bill Clinton, but they simply lacked the kind of forum -- confirmation hearings of a new justice -- to make their complaints heard.

"That's a tension that's always there," Clement said.

Retirement Questions

Ginsburg, 76, and her older compatriot on the liberal bloc, John Paul Stevens, will be most closely watched for signs that one will retire at the end of the term.

Stevens, 89, appears to be in excellent health and still enjoying his job. But his decision to hire one clerk for the term that will begin in October 2010, rather than the full complement of four, is seen as a sign that he is at least considering stepping down next summer.

Ginsburg said an operation early this year to remove a tiny cancerous tumor on her pancreas was successful, and she never missed a day of the court's public sessions as she underwent what she called precautionary chemotherapy. She spent a night in the hospital recently after a treatment for anemia left her ill, but she returned to work the next day.

No conservative justice -- Antonin Scalia, 73, is the oldest -- has given any indication of retirement.

The court's importance -- and the tension -- is likely to grow as it considers inevitable challenges to Obama's plans to have the government play a larger role in the economy and to whatever plan, if any, emerges for health-care reform.

Michael McConnell, a George W. Bush appointee to the federal bench who recently left to head the Stanford Law School's center on constitutional law, said there could be a pushback from the court similar to that experienced by another president who came to office with a bold plan for change -- Ronald Reagan.

"If you look in history, each time an administration arrives with a new and ambitious agenda, it encounters resistance from the court," he said.


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