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supreme court dispatches: Oral argument from the court.

The New KidJohn Roberts' first day at school.

By Dahlia Lithwick
Posted Monday, Oct. 3, 2005, at 3:31 PM ET

Since you're dying to know: John Roberts is not wearing the gold stripes that William H. Rehnquist added to his black robe several years ago. If we wanted proof of the new chief justice's infamous humility, this would seem to serve. At Harriet Miers' press conference this morning, Bush's new nominee for associate justice, like Roberts, also claimed to be humble.

Unlike Roberts, she's truly earned that right.

In a delicious double-Cheney, the woman assigned the task of selecting the next associate justice of the Supreme Court ultimately determined that there was no one so qualified as herself. Never mind that probably 49 other women have also served as the first woman president of their state bar associations. Never mind that the credentials Miers brings to the table might have justified labeling her a "pioneer" for women's rights 25 years ago. And never mind that the best thing Bush could manage to say for her this morning was that her mom is proud. The soft bigotry of low expectations …

The president has caved to the twin pressures of identity politics and confirmation politics: He's ignored the extremely well-qualified women for an unqualified one, and the well-qualified candidates for a confirmable one.

There's a sweet moment on the steps of the Supreme Court this morning in which young Jack Roberts, wearing his Christopher Robin short pantsuit and bow tie, leaps to his father's grasp with his arms outspread like an airplane. The disconnect between this tableau from a bygone era—this 1960s father-and-son moment—and the clumsy affirmative action choice of Miers is striking. We are clearly at a historic moment in which we can't comfortably move backward to the days of white privileged male power, or forward to an era of truly equal women.

Justice John Paul Stevens opens this morning's oral argument with a tribute to William H. Rehnquist. He was, he says, truly "first among equals," and then he quotes from Thomas Gray: "Full many a flower is born to blush unseen, And waste its sweetness on the desert air." He concludes by welcoming Roberts, who, he notes, "argued 39 times before this court." He smiles and adds: "Which exceeds the combined experience of the rest of us."

Roberts makes no speeches. He closes the 2004 term and opens the 2005 term, swears in the new Supreme Court Bar members, and announces oral argument in IBP Inc v. Alvarez and Tum v. Barber Foods Inc. The first case is not exactly a blockbuster—the issue in these consolidated appeals is whether the Fair Labor Standards Act requires that employees (in this case in the meat-processing industry) be compensated for the time they spend doffing and donning protective clothing and walking to their workstations. It's a case in which dry statutory construction bumps up against dry conflicting case law. Sizzling exchanges include lines like this one, from oral advocate Carter Phillips: "But let's not forget 79.7(g) footnote 49!"

Or this one, also from Phillips: "But this will have effects for res judicata and collateral estoppel."

So, how does Roberts look in the chief justice's chair? As though he were born to it, quite frankly. He is clearly prepared for argument. He listens intently to his colleagues' questions and watches them while they speak. His first exchange with Phillips shores up his credentials as a strict constructionist: "So, your approach introduces a third concept … and that's nowhere in the statute." He goes back and forth several times in this first colloquy and is quickly confident enough to retort: "That's my question." He juggles counsels' names, time limits, and a stack of briefs as though he's been doing it all his life. The fact that Roberts' umbilical cord was being cut when most of his colleagues were already practicing law is irrelevant. He is absolutely ready to lead them.

To his left sits Sandra Day O'Connor, who may vote and count, vote and not count, or not vote and not count in this case—depending on when Miers is confirmed. How she feels, knowing that her own résumé was more impressive 24 years ago than Miers' is today, is not evident from her questions. She must be wondering, as are the rest of us, whether young Jack Roberts might not have been a better pick to replace her.

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Dahlia Lithwick is a Slate senior editor.
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