Reviewing Roberts: America Considers a New Supreme Court Justice

On July 19, 2005, President Bush nominated John G. Roberts Jr. to replace Supreme Court Justice Sandra Day O’Connor.

Much of Robert’s career has been with the Republican Party; he served both Bush presidents and was a protégé of Chief Justice Rehnquist. George W. Bush appointed Roberts to the U.S. Court of Appeals for the D.C. Circuit in 2003. (He was nominated by President George H.W. Bush as well but never got a Senate vote).

From 1989 to 1993, Roberts was the principal deputy solicitor general in the George H.W. Bush administration, helping to develop the administration's position in Supreme Court cases. Roberts also was a part of the Reagan administration, specifically an aide to Attorney General William French Smith from 1981 to 1982 and an aide to White House counsel Fred Fielding from 1982 to 1986. He practiced law at Hogan & Hartson from 1986 to 1989 and from 1993 to 2003.

Roberts attended Harvard College and Harvard Law School and has argued frequently before the Supreme Court. Roberts is affiliated with the Republican Party and has made many campaign contributions to Republican candidates.

Bush strategy

Despite Roberts’ clear alignment with the GOP, he’s not as outwardly ideological as many of the other nominees on Bush’s short list.

Analysts speculate that Roberts’ low profile and bipartisan allies will help him to get through the nomination process, preventing a shutdown in the Senate that could doom Bush’s legislative agenda. But President Bush has the Court’s future in mind as well. By choosing someone who appears more moderate but clearly shares his beliefs, Mr. Bush has secured his Supreme Court legacy.

That’s not to say that there won’t be serious investigation of and argument over the nomination. Senate Judiciary Chairman Arlen Specter (R- PA) has already promised "very, very detailed" hearings on the qualifications and views of Mr. Roberts.

Specter wants to talk to Roberts about stare decisis

Specter will lead the Senate hearings on Roberts’ nomination. In confirmation hearings, it is impermissible for a judicial nominee to state how he will decide a particular issue. So, if asked how he would rule if he had to decide the constitutionality of a particular abortion statute, Judge Roberts could not answer. But Specter says that it’s fair to inquire about established legal precedent, or stare decisis.

This approach will allow Specter and other senators to question Roberts’ stance on cases like Roe v. Wade, which legalized abortion.

In addition to reproductive rights, senators are likely to scrutinize Roberts’ views on the First Amendment and the environment. Politicians and the public have an interest in confirming a person for Supreme Court Justice with views similar to their own.

Roberts’ history

History has shown that we cannot always predict how a person will rule as a judge based upon the person’s record as an advocate. In addition, a judge’s approach to legal issues is not always static but tends to evolve over time.

A lawyer representing a client is an advocate for the client. The role of an advocate is different from the role of a judge. A legal argument made on behalf of a client does not necessarily reflect the personal beliefs of the lawyer and does not necessarily predict how that lawyer, sitting as a judge, will rule when confronted with the same issue.

Law review articles, books and other publications that reflect the lawyer’s own views on how to analyze a legal issue can, however, provide insight into how that lawyer will approach that legal issue in the role of judge. If a lawyer has served as a judge, the opinions written by the judge or in which the judge joins can provide a great deal of insight into the judge’s views.

Most of Judge Roberts’ writings are briefs that advocate for his clients. He has also written a number of opinions since he became an appellate judge two years ago. Some of those writings are described below.

Abortion rights

In two cases, Roberts has taken positions that many consider hostile to women’s reproductive rights.

In 1991, Roberts helped to write the government brief in Rust v. Sullivan, in which the Supreme Court upheld new Title X regulations that prevented federally-funded family planning organizations from providing any abortion-related services or counseling. The new rules prevented clinics from performing abortions, counseling clients about abortion, or even referring them to other facilities that provided abortion services.

Roberts helped to argue that the new Title X regulations carried out Congress’ intent, even though this intent was debatable.

Further, Roberts used Rust v. Sullivan to argue against Roe v. Wade, even though it did not directly implicate the landmark case. Roberts said: "We continue to believe that Roe was wrongly decided and should be overruled...The Court’s conclusion in Roe that there is a fundamental right to an abortion "finds no support in the text, structure, or history of the Constitution."

In another case, Roberts was co-author of a brief that defended Operation Rescue, an organization devoted to preventing women from getting abortions. Roberts’ brief in this case, Bray v. Alexandria Women’s Health Clinic, claimed that Operation Rescue does not discriminate against women, even though he acknowledged that only women can become pregnant.

Justice David Souter rejected Roberts’ arguments, saying that Operation Rescue is clearly motivated by the assumption "that individual women are not capable of deciding whether to terminate a pregnancy..." Souter went on to say that Operation Rescue was "designed to deny every woman the opportunity to exercise a constitutional right that only women possess."

The upshot: Roberts’ case history suggests that he is against a woman’s right to choose.

Roberts’ history - Separation of Church and State

Roberts believes religion has a place in public schools. In the 1990 case Mergens v. Westside Community School District, Roberts maintained that religious groups should be able to meet on school grounds according to the Equal Access Act. He further claimed that such meetings would not violate the Establishment Clause of the Constitution, which sets up the separation of Church and State.

In the 1992 case Lee v. Weisman, Roberts argued that public high schools should be able to include religious ceremonies in their graduation programs.

The upshot: The Supreme Court agreed with Roberts in the first case and disagreed with him in the second, but both cases illustrate that Roberts would accept an expanded role for religion in public schools and possibly in public life.

Roberts’ history - the environment

Roberts has a pro-business stance that many see as anti-environment. He argued before the Supreme Court in Lujan v. National Wildlife Federation that citizens trying to protect 4,500 acres of public land had no right to file the claims.

The Supreme Court agreed with his argument, thereby allowing the land to be mined and setting a precedent that has made it more difficult for plaintiffs to contest government actions that may be damaging to the environment.

Further, as a federal appeals court judge, Roberts ruled against the protection of a rare toad whose habitat in California was threatened by development. Roberts decided that the toad was not protected by federal law because it lives only in California, and the federal government can only regulate matters involving more than one state.

In 2004, he rejected a suit by the Sierra Club that hoped to force the Environmental Protection Agency to take on a tougher standard for the emission of dangerous air pollutants from copper smelters.

The upshot: Roberts has consistently argued and ruled against environmental protections.

Considering the nominee

At 50 years old, John G. Roberts is ready for a lengthy stay on the Supreme Court if he is confirmed by the Senate. And with Congress and the White House controlled by a single party, only the Court is still untouched by majority rules. If Roberts is confirmed, will the minority party be squashed? Or will Roberts make decisions independent of his party affiliation? Does Roberts fall within the mainstream or are his views on the fringe?

Check back with WomenMatter; we will cover the Senate hearings on the Roberts nomination.

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Posted on: 7/21/2005