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The Conservative Persuasion

John Roberts's studies in intra-court politics bode well for his tenure as chief justice.

2:00 PM, Sep 29, 2005 • By CHRISTOPHER LEVENICK
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NOW THAT JOHN ROBERTS has been confirmed as chief justice of the Supreme Court, time alone will tell whether President Bush has made good on his promise to appoint judges in the mold of Clarence Thomas and Antonin Scalia. After all, it is a curious but undeniable fact that Republican presidents, unlike their Democratic counterparts, often see their Supreme Court nominees drift from their supposed ideological commitments. Bill Clinton has never had to defend his selection of Ruth Bader Ginsburg or Stephen Breyer to fellow liberals, but Republican presidents have repeatedly had to acquit themselves to their friends on the right. Gerald Ford has been called to account for the predictably liberal John Paul Stevens; Ronald Reagan, for the erratic Sandra Day O'Connor and the capricious Anthony Kennedy; and George H. W. Bush, for the left-leaning David Souter.

Conservatives nevertheless have good reason to expect Roberts to be the justice that President Bush promised them. They may reassure themselves with the knowledge that Roberts was formed in the crucible of the Reagan revolution, and that he evinces the dispositional conservatism of a traditional Catholic. By any reasonable account, Roberts appears more reliable than O'Connor, the justice he was originally intended to replace--and likely as dependable as William Rehnquist, the justice he will in fact replace.

Yet for all the talk about how Roberts might fare as a justice, there has been relatively little discussion of how he will fare as a chief justice. It is, to be sure, a secondary consideration. The chief has relatively little direct power; the duties of the office are less like a corporate executive and more like a meeting facilitator. But that hardly renders the position unimportant. What the chief lacks in hard power can be made up in soft. Influence may be exerted though diplomacy and tact among the justices and by compromise and maneuver within the Court. It can be exercised, in short, through the quiet art of persuasion.

NEEDLESS TO SAY, sole recourse to such soft power enormously complicates the task of leadership. But Roberts is--and has been for at least two decades--acutely attentive to the difficulties and possibilities that attend upon the office. A fine example may be found in a June 4, 1985, memo he wrote for the White House regarding the controversial case of Wallace v. Jaffree.

Wallace represents the high-water mark of Supreme Court legal secularism. A 6-3 majority found that an Alabama measure to begin every school day with a moment of silence violated the Establishment Clause of the Constitution. The majority found that the legislation had "no secular purpose" and therefore could not withstand the astringencies of the infamous "Lemon" test. (Propounded by Warren Burger in Lemon v. Kurtzman, the test requires statutes to have a secular purpose, to neither advance nor inhibit religion, and to avoid any entanglement with religion.) Yet to the Court, even such an outline of a shadow of an appearance of religion proved impermissible in the public schools.

On the same day the verdict was announced, Roberts assessed the decision in a memo to Fred Fielding. He began by restating the outlines of the case with characteristic precision and intelligence. But of particular interest is a parenthetical paragraph appended to the end of the note: