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Consensus is Roberts' rule of order

New chief justice urges court to speak with unified voice

By Bill Mears
CNN

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Chief Justice John Roberts wants the Supreme Court to speak with a unified voice.

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WASHINGTON (CNN) -- Chief Justice Roberts makes no secret of his desire to foster as much agreement among his benchmates as possible.

"There are clear benefits to a greater degree of consensus on the court," he said in a recent commencement address at Georgetown Law Center.

Speaking with one voice helps "promote clarity and guidance for the lawyers and for the lower courts trying to figure out what the Supreme Court meant," he explained.

The key, said Roberts is to rule on the narrowest grounds possible, to do only "what's necessary to decide the case."

The results so far: 31 unanimous rulings of 46 issued. In March, 11 straight opinions were unanimous, a modern day record, say court watchers.

Among them were two rulings involving the Bush administration.

In a religious rights case, a New Mexico church was allowed to use a hallucinogenic tea in its church services. In the other case, the Pentagon was permitted to continue to bring military recruiters onto college campuses, despite claims by some schools that their free speech rights were being violated.

Such harmony can wind up hurting the court's credibility, some legal observers say.

"Unanimity can be very valuable, yet the suppression of dissent can also come at a cost," said Edward Lazarus, an attorney and author of "Closed Chambers," a behind-the-scenes look at the high court.

"Clear dissent can serve a vital role, leading the court eventually to recognize and correct its past mistakes," he added.

Is consensus practical?

Many legal observers say the idea of consensus sounds good on paper but is not practical given the current court's makeup and the sharply held views of its nine members.

The chief justice's leanings are decidedly conservative.

"I don't know how much Roberts is going to lead beyond the current term," said Lazarus, who said the new chief benefited from a judicial honeymoon early in his tenure.

As chief justice of the United States, Roberts also has administrative authority over the federal judiciary -- the district, appeals, tax, immigration and magistrate courts, among others.

There are signs he has begun to put his stamp on ensuring a smooth functioning judiciary. He hired Washington lawyer James Duff to head the administrative office of the federal courts. Duff, a former chief of staff to late Chief Justice William Rehnquist, is known for his consensus-building skill.

Roberts puts such experience at a premium, making improved relations with Congress a top goal.

"It's a new chapter," Roberts told CNN when Duff's appointment's was announced. "This is a great opportunity for whatever disagreement or miscommunication has built up, for that to be addressed."

Nine little kingdoms

The legislative and judicial branches have tangled in recent years over funding to increase judges' salaries and security at the nation's courthouses.

The budget concerns also come amid grumbling among some conservative lawmakers over recent court rulings. Several congressmen have suggested impeaching judges who cite international law in their rulings and creating an independent board to oversee the federal courts.

Some legal observers have applaud Roberts' leadership on the issue.

"It's a pretty tense environment when there is in the air some effort by conservatives to cut back on judicial power, and he's really defended the judiciary very strongly," Washington appellate attorney Thomas Goldstein said.

The Supreme Court has been described as nine little kingdoms with the justices free to vote as they wish, not beholden to any other member. Roberts says a unity of purpose will serve the court well, especially when faced with the most difficult issues.

"The important point is that the key to achieving this broader consensus on a collective and collegial court does not rest with any individual member, chief justice or not, but with the court as a whole," he said recently.

"There will, of course, be divisions on the court, and those cannot and should not be artificially suppressed. But the rule of law and the court as an institution both benefit from broader agreement," Roberts said.

That principle will be tested mightily in coming weeks, as the justices prepare to wrap up their work for the summer.

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