For John Roberts, now a judge on the Court of Appeals for the District of Columbia, elevation to the Supreme Court will be less of a change than most observers imagine. He's already been a drudge. There is a popular misconception that the high court sits on Olympus and hears only Olympian cases — abortion, free speech, eminent domain, Ten Commandments and stuff like that.
Au contraire! During the term that begins in October and ends in June, the court will hear argument in about 80 cases. Ten of these will command huge public interest. Another 10 or 15 will draw a crowd to First Street. And the rest? Except for the lawyers, their clients, assorted functionaries and we ink-stained wretches of the press, the place belongs to the tourists.
The newest justice will have to endure the same kind of high-toned hazing endured by those who have gone before. That is, as long as he's No. 9 he will be assigned to write the court's opinion in cases best identified as dogs.
Three months after he joined the court as its most junior member, Justice Clarence Thomas wrote his first opinion. The case was Shirley M. Molzof, etc., v. United States. It involved a veteran who died of careless treatment at a veterans' hospital in Wisconsin. Thomas wrote for a unanimous court. He began with an electrifying lead:
Kind of grabs you, right?
In December 1993, Justice Ginsburg announced her maiden opinion in John Hancock Mutual, etc., v. Harris Trust & Savings. She read her opening paragraph aloud. Everyone in the courtroom, including Clerk Bill Souter, fell fast asleep. She explained:
"This case presents an issue of statutory construction — whether the fiduciary standards stated in the Employees Retirement Income Security Act of 1974 (ERISA) govern an insurance company's conduct in relation to certain annuity contracts. ... Our task is to determine the bounds of a statutory exclusion from 'plan asset' categorization, an exclusion Congress provided for 'guaranteed benefit policies.'"
In January 1995, Justice Breyer made his debut with the court's 7-2 decision in Allied Bruce Terminix Corp. v. Dobson. He began with a rousing summation:
"This case concerns the reach of Section 2 of the Federal Arbitration Act. That section makes enforceable a written arbitration provision in 'a contract evidencing a transaction involving commerce.' Should we read this phrase broadly, extending the act's reach to the limits of Congress' Commerce Clause power? Or, do the two underscored words — 'involving' and 'evidencing' — significantly restrict the act's application?"
I was sojourning in Sarasota when Justice Breyer thus wowed the courtroom crowd, and cannot report the reaction. It probably amounted to wild acclamation.
Ah, well. During the coming term, when Roberts moves up from judgeship to justiceship, he will have a hand in building landmarks of the law. For example, he will join in deciding Illinois Tool Works v. Independent Ink Inc. The question is, under the Sherman Act, must a plaintiff prove as part of its affirmative case that defendant possessed market power in a relevant market for a tying product?
Then the newcomer must stay awake for argument in Unitherm Food Systems Inc. v. Swift-Eckrich Inc. Here he will be called upon to decide, "To what extent, if any, may a court of appeals review sufficiency of evidence supporting civil jury verdict when party requesting review made motion for judgment as matter of law before submission to jury, but neither renewed that motion under Rule 50(b) after jury's verdict, nor moved for new trial under Rule 59?"
Hey, John! Are you sure you really want this job?
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
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