There is no doubt that John Roberts has all the credentials that a President could ask for in a Supreme Court nominee: the Harvard degrees, the federal clerkships, the government service and the years at a white-shoe Washington law firm. But in the post-Bork age, with the opposition ready to pounce on a nominee’s judicial or academic record, Roberts also boasts that most prized feature of a résumé–a relatively short paper trail. For a man widely considered one of the brightest legal minds of his generation, Roberts has made very few of his personal views known in either scholarly writings or high-profile judicial opinions, which is exactly what conservatives hope will make his nomination bulletproof.
Roberts, after all, has been a federal appeals judge for only a little more than two years, on a court that hears primarily arcane cases concerning administrative and regulatory law rather than the broad constitutional issues before the Supreme Court. And in his roles as a hired corporate gun or a political appointee, as he and many other lawyers see it, he was simply representing the interests of his clients or his boss, including those of the President. That may well be true. But what is at stake is a lifetime appointment as the replacement for the court’s key swing vote, so that is a distinction that liberal interest groups and at least a few Senate Democrats are likely to ignore.
Not every case Roberts has worked on will suit their purposes. Although for the most part he has shown a reliably conservative streak, Roberts has also taken some surprising stances, defending the rights of welfare recipients, criminal defendants and prisoners in pro bono cases, for instance, and representing the state attorneys general in their antitrust case against Microsoft. Still, while usually taking a fairly pragmatic approach to the law, Roberts has by and large demonstrated a consistent legal philosophy: it stresses relative judicial restraint and takes a limited view of congressional power but a broader view of executive privilege, all the while putting a strong emphasis on individual responsibility and law and order. With that in mind, here is a guide to what Roberts has written or said over the years concerning the most important legal issues of the day, as well as some of the relevant cases that are coming before the Supreme Court in the next term. –With reporting by Viveca Novak and Eric Roston/Washington
ABORTION
During Senate confirmation hearings in 2003, Roberts stressed that he had no personal issue with applying the precedent of Roe v. Wade, which he called “the settled law of the land.” But during his stint as Principal Deputy Solicitor General from 1989 to 1993, Roberts co-authored briefs in two controversial Supreme Court cases, one that upheld federal rules prohibiting clinics that received federal dollars from even discussing abortions and another that helped to successfully defend pro-life protesters who had blocked entry to abortion clinics against charges that they had thereby violated the rights of women. “We continue to believe that Roe was wrongly decided and should be overruled,” stated the brief in the gag-order case, Rust v. Sullivan.
Upcoming Cases: One centers on the constitutionality of a New Hampshire parental-notification law, which includes an exception for life-threatening pregnancies but not other health problems.
CHURCH AND STATE
While Deputy Solicitor General in the early 1990s, Roberts co-signed a brief that unsuccessfully argued that a public school should be allowed to include a religious benediction as part of a graduation ceremony. In another case concerning the the role of religion in public life, Roberts fared better, helping prevent a public school from barring a religious group from meeting on its grounds after school. Upcoming Cases: One involves whether the government can prohibit a small Brazilian-American religious sect from importing a hallucinogenic tea (and controlled substance) for use in rituals.
RACE
As Deputy Solicitor General, Roberts co-authored two briefs calling for an end to court-supervised desegregation in Oklahoma and Georgia. The U.S. argued successfully in each case that enough progress had been made and that schools could be lifted from orders requiring that they integrate. On the other hand, in 1991 Roberts co-authored a government brief alleging that Mississippi was still overseeing a racially segregated system of public universities; that view was upheld. As for affirmative action, Roberts touched on the issue as a private attorney in 2001, writing a friend-of-the-court brief in support of Adarand Constructors in its long-running, ultimately unsuccessful legal battle against racial preferences in the federal highway program’s subcontracting awards.
ENVIRONMENT
As a private attorney, Roberts helped a local planning agency uphold regulations barring development around Lake Tahoe. But while working for the first Bush Administration, Roberts helped persuade the Supreme Court in two cases to narrow the grounds on which environmental groups could sue the Federal Government. What has the greens most worried is a dissent filed by Roberts on a request for a rehearing by a California real estate developer in a case involving the threatened arroyo toad, protected under the Endangered Species Act. Roberts argued that the plaintiffs should at least be granted a second hearing by the full court because the Constitution’s commerce clause, which says Congress may pass laws controlling interstate commerce, was being misapplied; it does not authorize Congress to pass laws protecting, he wrote, “a hapless toad that, for reasons of its own, lives its entire life in California.” Legal experts wonder if he might use this reasoning to attack other laws, not just environmental laws, that are based on broad readings of the commerce clause.
FREE SPEECH
In 1990 Roberts co-wrote the government’s brief arguing that a new law criminalizing flag burning was in fact constitutional. But as a private attorney, he successfully helped Soldier of Fortune magazine fight a suit brought by a woman charging that the magazine had been negligent in running an ad that her son-in-law had used to hire a hit man to kill her daughter. Upcoming Cases: One revolves around whether Congress can withhold funding from universities that claim they have a First Amendment right to make it hard for the military to recruit on campus because they view its “Don’t ask, don’t tell” policy as discriminatory.
CRIME AND PUNISHMENT
Last year Roberts dismissed a case brought by the mother of a 12-year-old girl who had been hauled off in handcuffs for eating a single French fry in the Washington Metro; she claimed her Fourth Amendment and equal-protection rights had been violated, in part because, under the law, an adult would only have received a citation from the police. Roberts has also come down consistently, most recently in a dissent last week, in favor of police searches and seizures that were arguably conducted without probable cause. Still, last year he ordered the resentencing of a man who was being treated more or less as an equal partner in crime largely because he had been aware that his wife had stolen computers and other items from her government office. Upcoming Cases: One features a Tennessee man on death row trying to win a new trial because of fresh, potentially exculpatory DNA evidence. Another centers on whether police can search a home when a squabbling husband and wife give different answers to officers’ requests to do so.
EXECUTIVE PRIVILEGE
One of the few really controversial rulings Roberts has joined as a federal judge came down earlier this month, when the court said that prisoners held in Guantánamo Bay are not protected by the Geneva Convention and can be tried by military commissions. Roberts dissented in 2003 when his own court refused to rehear Vice President Dick Cheney’s appeal to keep secret records from the meetings of his energy task force. Cheney had argued that handing over such documents would violate executive privilege.
LABOR AND EMPLOYMENT
In one of his most famous cases as a corporate lawyer, Roberts represented Toyota and won a major victory for Big Business against the Americans with Disabilities Act, when the Supreme Court ruled that an assembly-line worker with carpal tunnel syndrome wasn’t covered by the antidiscrimination law. Still, as a judge, Roberts has come down on the side of workers, ruling in favor of an employee who accused Washington’s transit authority of having fired him because he suffers from bipolar disorder. He upheld the district court ruling because he said the transit authority received federal funds and thus was obliged to follow federal laws governing terminations. Upcoming Cases: One involves whether workers at meat-processing plants should be paid for the time it takes them to get to their work stations after they don nearly 10 lbs. of required protective gear.
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