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5 Things You Need to Know About Roberts

13 minute read
Nancy Gibbs

Autopsies are typically performed in private, and on dead people, so the public vivisection this summer of Supreme Court nominee John Roberts has at times been a pretty engrossing spectacle. Some opponents got sloppy in their handling of his views; NARAL Pro-Choice America had to pull an ad after linking Roberts to abortion-clinic bombers. Some supporters discovered on closer examination that maybe he was a different species of conservative than they had thought, particularly when they learned he had moonlighted on behalf of a gay-rights group. Overall the very deliberate examination of his every argument and memo and decision has revealed a more complex character than initial reports promised. The 60,000 pages of documents from his early years as a hotshot Reagan Administration lawyer that have since been made public show an ambitious twentysomething with an attitude–sometimes cautious, always confident, occasionally acid, as when he referred to the Girl Scout who wanted to sell a box of cookies to Ronald Reagan as “the little huckster.” And sometimes possessed of a tart sense of humor, as when Roberts replied to a professor anxious about being blacklisted because he had lodged a complaint against a government agency: “Once you let the word out there’s a blacklist, everybody wants to get on it.”

For Senators preparing for his confirmation hearings next week, the challenge will be to discover how he reconciles laws and principles and precedents and his own instincts when they come into conflict. To call him conservative is not very helpful without knowing whether it applies more to means or to ends. If conservatives are inclined to respect precedent, does that include the precedents they abhor? If Congress overreaches, is the court being too “activist” by stepping in? Some conservatives care most about freedom, others about order; when the two values conflict, which one will he favor? He will try hard not to give any definite answers.

While few people expect Roberts to stumble much on his road to confirmation, the Senators posing these questions and the pro-and-con activists packing the bleachers know the show is not just about him. This is probably only the first of several Bush Supreme Court nominations. Since the betting is that this one will be confirmed, the main question is how the sides are positioning themselves for the ones to come. Democrats who indicated earlier this summer that they thought Roberts was an acceptable choice got an earful from liberal interest groups on hanging tough. Conservative counselors Jay Sekulow, Ed Meese and Leonard Leo, who advised the White House on picking Roberts, sent a memo to colleagues noting that the same kind of stories about Roberts sailing through were written more than a decade earlier about Clarence Thomas. “There is far, far too much at stake,” they wrote, “for our left wing friends to sit on the sidelines.” In that light, the precedent that really matters most may be the one established by Roberts’ experience in the weeks ahead.

“A JUDGE MUST HAVE HUMILITY …”

1. Among the central questions Roberts will be asked to address is how he views a Justice’s role: How does he perceive the court’s power, and how much does he respect its past decisions? In his responses last month to a Judiciary Committee questionnaire, he invoked the values of modesty and humility seven times in an eight-paragraph response, as in “a judge must have the humility to be fully open to the views of his fellow judges.” As for precedent, Roberts affirmed that it “plays an important role in promoting the stability of the legal system.” If nothing else, that was politically shrewd, since it heartened liberals, who felt he wouldn’t set out to unravel every regulation of the past 30 years, but also conservatives, who felt reassured that he wouldn’t use a seat on the bench to confect a constitutional right to gay marriage.

Judges, Roberts noted on his Senate questionnaire, “do not have a commission to solve society’s problems.” He has held that view since his earliest days in government. Old memos show that as a Reagan Administration lawyer, he ardently opposed judicial meddling in divisive issues he thought were best left to lawmakers. He even wrote that Congress had the power to strip the Supreme Court of its right to hear cases that involved social issues like school prayer and abortion. When Chief Justice Warren Burger in 1983 complained of the court’s heavy workload, Roberts wrote a sizzling memo, observing, “So long as the court views itself as ultimately responsible for governing all aspects of our society, it will, understandably, be overworked.”

But modesty, like activism, is in the eye of the beholder. What the Democrats want to know is how he would treat past efforts by the court to right social wrongs, whether by busing students to foster desegregation or banning the execution of people under age 18. Would he “humbly” respect those earlier decisions or overturn them as examples of judicial excess? When he talked about the lump he gets in his throat as he walks up the court’s marble steps, it suggested he is not interested in burning the place down. But the tone of some early memos, like one in which he approved of Education Secretary Bill Bennett’s attacks on the court for its “hostility to religion,” suggests his respect is not absolute. He even supported term limits for federal judges so they “would not lose all touch with reality through decades of ivory tower existence.”

“THE SO-CALLED ‘RIGHT TO PRIVACY’ …”

2. Abortion is only one front in the privacy wars, but at Roberts’ confirmation hearings, whether a privacy right exists will function mainly as code for whether an abortion right exists. Among liberals, a major defense of Roe v. Wade, the 1973 decision legalizing abortion, is that if it is overturned the destabilizing effect will be great, denying women a legal right they have had for 32 years. But to many conservatives the matter has never been settled as the Warren Court’s original recognition of a constitutional right to privacy (in a 1965 case involving the use of contraception) provided the basis for Roe. Strict constructionists like Antonin Scalia and Thomas think the court was just plucking rights out of thin air when it perceived the right to privacy nestled in the Ninth and 14th amendments. (The Ninth says just because some rights are explicitly protected doesn’t mean others don’t exist; the 14th says people cannot be denied life, liberty or property without due process.) At one time Roberts appeared to agree. As a young Justice Department lawyer in 1981, he summarized a lecture in which the speaker “devotes a section to the so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution.” But this summer he told a Democratic Senator that it was hard to read the Constitution without getting some impression that the Founders were talking about privacy.

If Roberts really does think Roe was “wrongly decided,” as he wrote in a 1990 Justice Department brief, Democrats want to know if he would be willing to throw it out or whether that would be too radical a reaction for his taste. Conservatives hope Roberts will line up with Chief Justice William Rehnquist, Scalia and Thomas in favor of overturning Roe, which would match the quartet–David Souter, Ruth Bader Ginsberg, Stephen Breyer and John Paul Stevens–that wants to maintain it, leaving Anthony Kennedy as the swing vote. While Roe might survive, such a lineup would probably ensure that the 2003 congressional ban on partial-birth abortion is upheld.

FORGET THE “HAPLESS TOAD …”

3. Here is a classic tension: How much restraint should one branch of government show when it feels another is not showing enough? The Rehnquist Court holds the record for tossing out congressional statutes, often on the ground that Congress is muscling in on state turf. The argument rests on how one reads the Constitution’s Commerce Clause, an omnibus notion that allows Congress to regulate interstate commerce but has frequently been used as an all-purpose regulatory vehicle. The high court has overturned a federal law that barred possession of a firearm within 1,000 ft. of a school and parts of the 1994 Violence Against Women Act, deciding these laws had nothing to do with interstate activities.

“We’ve gotten to the point these days,” Roberts said in a 1999 interview on NPR, “where we think the only way we can show we’re serious about a problem is if we pass a federal law … The fact of the matter is, conditions are different in different states.” And state laws, he argued, are “more attuned to the different situations in New York as opposed to Minnesota.” Among cases that have got the most attention is his dissent to a ruling in which a California developer was stymied by an endangered toad. Since the “hapless toad, for reasons of its own, lives its entire life in California,” Roberts argued, it was not part of any interstate commerce that Congress had the power to regulate. If that view prevailed, many statutes protecting the environment, civil rights and worker safety could join the toad on the endangered list. Roberts’ dissent is a “pretty big deal,” says University of Chicago Law School professor Cass Sunstein. “The fact that he was willing to challenge the Endangered Species Act as a brand-new judge, when lots of his Republican colleagues went the other way, indicates that he really wanted to make a statement.”

That will be tricky terrain when he sits in front of the Senate Judiciary Committee next week; it is legislators’ regulatory power he would constrain. Chairman Arlen Specter wrote a letter to Roberts previewing a line of questioning: “Members of Congress are irate about the Court’s denigrating and, really, disrespectful statements about Congress’ competence.”

DISCRIMINATION CAN’T SOLVE DISCRIMINATION …

4. Although times–and people–change, Roberts’ early writings on civil rights give a sense of his instinct: one shouldn’t use discrimination to battle discrimination. He took a dim view of initiatives to redefine the Voting Rights Act, which he thought should ban only intentional efforts to disenfranchise black voters–hard to prove–and not practices that some civil rights activists claimed had the effect of limiting black voting rights. He argued that Congress could reject court-ordered busing plans on the ground that they did not prevent segregation but promoted it by encouraging “white flight.” He complained that theories about “comparable worth,” advocated by even some Republican legislators to achieve pay equity between women and men, were “anticapitalist” and could lead to reverse discrimination. “It is difficult to exaggerate the perniciousness of ‘comparable-worth theory,'” he wrote. “It mandates nothing less than central planning of the economy by judges.” When a group of female Republican House members wrote the White House in support of the theory, Roberts drafted a memorable response: “Their slogan may as well be, ‘From each according to his ability, to each according to their gender.'”

Comparable worth has faded as a legal theory–but one of the Republicans he challenged, Maine’s Olympia Snowe, is sitting in the Senate that will vote on his nomination. Among Democrats, says Jim Manley, spokesman for Senate Democratic leader Harry Reid, the 1980s memos, “especially on civil rights, are posing some trouble for many members.” Roberts’ views on these issues could be critical, as Sandra Day O’Connor, whose place he will take, was often the fifth vote supporting affirmative action.

BAN MOMENTS OF SILENCE? “INDEFENSIBLE.”

5. Roberts is a Catholic who attends a traditional church in Maryland. He has written little on church-state issues, but to many conservatives, the court’s worst modern sin, other than Roe, may be the exile of religion from the public square. In rulings dating to 1962, the high court has shut down school prayer, restricted Ten Commandments displays, outlawed prayers at football games. In the 1980s Roberts came out against the court’s understanding of church-state separation. He wrote favorably in 1984 of efforts to give religious groups the same rights of assembly on school property that other groups had. The following year he described as “indefensible” a court decision that invalidated Alabama’s law allowing a moment of silence.

The court has recently taken small steps to the right, like allowing students to use vouchers to attend religious schools on the ground that they could be used at any private school, not just parochial ones. But many remain confused by a ruling in June on displays of the Ten Commandments. The court said a display in a Kentucky courthouse, which it felt was an attempt by the state to endorse Judeo-Christian beliefs, was unconstitutional but a Texas display could stay because it included historical documents and dated to 1961.

O’Connor tended to vote against anything that looked like government endorsement of religion, as in the recent Ten Commandments decisions, but she favored voucher programs. Democrats suspect Roberts will be more willing to reintroduce religious symbols and language into public space. Senators, particularly New York’s Charles Schumer, have said they want to probe Roberts’ views on church-state issues like the faith based initiatives that President Bush has promoted.

The key test comes in reconciling the views a judge holds personally with how he allows them to influence his rulings from the bench. Justice Stevens last month made a rare public speech about the high court’s need to sublimate personal preferences to judicial precedent and philosophy. Whatever Roberts’ private views, he is not likely to reveal them in the hearings. In a sense he has been through this before, as he was heavily involved in preparing O’Connor for her confirmation hearings in 1981. He noted in a memo then that “the approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating a firm command of the subject area.” In a memo to O’Connor, he said Senators shouldn’t even ask nominees to address cases, in part because they weren’t likely to learn much. “If nominees will lie concerning their philosophy,” Roberts wrote, “they will lie in response to specific questions as well.”

Roberts has learned something about the challenge of wearing black robes since he wrote his memos. As an appeals court judge, “I found that deciding cases was a lot harder than I thought it would be,” he told a group of law students last winter. “I kind of thought that in most cases that it would be pretty obvious … that this person should lose, this person should win, and you’d spend most of your time writing the opinions, [but] I’ve found that I have to spend far more time than I thought I would just getting to that first step–what the right answer should be.” –Reported by Perry Bacon Jr. and Viveca Novak/Washington

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