Swap John Roberts for Sandra Day O'Connor and what do you get?
The answers will come in hundreds of cases over the next 25 or 30 years, if the Senate confirms his nomination to the Supreme Court.
But the Roberts Effect will begin to emerge in what he says during oral arguments on the cases that are on the court's docket for the term that begins Oct. 3, and in the opinions he writes in those cases.
From the right of doctors to help people commit suicide to the powers of the police to search our homes, Roberts's votes will shape the rules under which Americans live.
His two-year stint on the federal appeals court in Washington offers a few hints on his judicial philosophy. Some indicators also come from his career as deputy solicitor general in the administration of George H.W. Bush and as a Justice Department official in the Reagan administration.
Here are some of the contentious social issues on this fall's docket which Roberts would confront, if confirmed.
In a test of the nation’s only physician-assisted suicide law, a case called Gonzales v. Oregon, slated for oral argument on Oct. 3, the justices will decide whether the Bush administration can use the 1970 Controlled Substances Act to prevent Oregon doctors from helping very ill people kill themselves.
In 2001, then-Attorney General John Ashcroft prohibited Oregon physicians from prescribing drugs to assist suicides. He cited a federal regulation which says a prescription for a controlled substance “must be issued for a legitimate medical purpose.” Suicide is not a legitimate medical purpose, he ruled.
Supporters of the Oregon law say the history of the Controlled Substances Act shows that Congress never gave the attorney general the power to decide which state-approved medical practices are legitimate.
“The burden for Department of Justice is to convince Roberts and the court that the former attorney general (Ashcroft) did not overreach,” said Doug Kmiec, a former official in the Justice Department during the Reagan administration who now teaches at Pepperdine Law School.
In his dissent in a 2003 case testing whether the Endangered Species Act applies to purely intrastate species, Roberts expressed skepticism about how far the federal government's regulatory power, based on the power of Congress to regulate interstate commerce, can reach into states.
He questioned whether building a housing development that disrupted the habitat of "a hapless toad that for reasons of its own, lives its entire life in California" really constituted interstate commerce.
Proponents of the assisted suicide law cast the conflict as one of defending states' rights — here, the right of a state to regulate how doctors in that state practice medicine — against an overweening federal government.
Although the legal reasoning may be different in the Oregon case from the toad case, his dissent shows that in some instances Roberts is sympathetic to strict limits on the power of federal government.
Abortion for minors
If assisted suicide isn't controversial enough for you, Roberts and the justices will also deal with another hotly contested social issue: Should a state, in this case New Hampshire, be allowed to require parental notification before minor girls get an abortion?
Ayotte v. Planned Parenthood of Northern New England, set for oral argument on Nov. 30, will be the first abortion case to come before the court since O'Connor announced her retirement.
The court has held in previous cases that states can not place an "undue burden" on women seeking abortions. The New Hampshire case offers the court an opportunity to alter or jettison the "undue burden" standard and make it easier for states to restrict abortion.
Five years ago, O'Connor was in the five-justice majority in the last major abortion case the court took on, when it struck down Nebraska's law banning the practice known as partial-birth abortion.
Roberts's own views on abortion and parental notification are not yet known. But abortion rights groups decry him for arguing in a 1993 case that abortion clinic operators could not use an 1871 civil rights law to sue the anti-abortion group Operation Rescue for blocking access to clinics.
Roberts said the clinic operators could use state laws to fight Operation Rescue. The Supreme Court agreed with his position.
Roberts’s role in that case “could be an ominous indicator of his position on women's rights," warned Karen Pearl, interim president of Planned Parenthood Federation of America in a statement last week. “There are reasons to be seriously concerned about whether he would vote to protect women's health and safety in cases such as Ayotte v. Planned Parenthood….”
Gay rights and military recruiters
Competing the trifecta of social issues on the court's docket for this fall is a case that entwines gays rights and military recruiting on college campuses.
In Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), set for argument on Dec. 6, a group of law schools is challenging a federal law which tells colleges and universities that, as a condition of receiving federal money, they must provide the same access on their campuses for military recruiters as they do for other recruiters.
The law schools oppose the military’s policy which bars openly gay people from serving in uniform. The schools argue that the law, known as the Solomon Amendment, violates their First Amendment rights by, in effect, forcing them to express agreement with the ban on gays.
"I think Congress should eliminate the ban on gays and lesbians serving in the military," said Duke University Law Professor Erwin Chemerinsky, one of those suing to strike down the Solomon Amendment. "But that is not what the suit is about. It is about making sure that law schools do not provide facilities to employers who discriminate against some of our students."
Last November, the U.S. Court of Appeals for the Third Circuit ruled in favor of Chemerinsky and his fellow professors.
In 2001, when he was in private law practice, Roberts dealt with an analogous speech case, which is "relevant to the analysis in Rumsfeld v. FAIR," according to Kmiec.
Hired by the American Mushroom Institute for his expertise in speech cases, Roberts argued in favor of a Department of Agriculture program which collected money from mushroom growers to pay for campaigns urging Americans to eat more mushrooms.
Roberts contended the program "was a justifiable exercise of government speech, a position since vindicated in the beef case (Johanns v. Livestock Marketing Association, decided in May)," said Kmiec.
Likewise, one could argue that military recruiting on campuses is an exercise of government speech, and not the government forcing the universities to endorse its message of banning openly gay people from the military.
Crime and punishment
Of course, when many Americans think of the courts they first think of cops and crooks, crime and punishment. The justices will hear arguments this fall in at least four cases involving the rights of those arrested or in jail.
One case involves a police search of a common area of a residence being shared by two tenants. One of the occupants consented to the police search, the other objected. The justices will decide whether the search was permissible under the Fourth Amendment.
Another case involves whether the Americans with Disabilities Act (ADA) applies to prisoners held in state penitentiaries. In a decision last year, decided by a 5-to-4 vote with O’Connor in the majority, the court decided that the ADA allowed a disabled person to sue a state for not providing access to a courtroom, even though the court’s previous rulings had held that the Eleventh Amendment to the Constitution gives each state immunity from lawsuits by its own citizens.
The case on the fall docket, Goodman v. Georgia set for Nov. 9 argument, will test how far the court, presumably with Roberts instead of O'Connor on it, would extend the ADA.
In his work as deputy solicitor general in the first Bush administration and in a recent ruling as an appeals court judge, Roberts has been inclined to give the police wide latitude, specifically in searching suspects’ cars.
In a 1991 case which he argued before the Supreme Court, Roberts contended that when a suspect gives police permission to search his car he thereby consents to searching a container within the car. The court agreed with Roberts.
In a decision handed down just two weeks ago in a case called U.S. v. Jackson, Roberts dissented from two of his colleagues who ruled that police had no justification for searching the trunk of a 1988 Mercury Marquis, after stopping the car’s driver, Tarry Jackson, at 1 a.m.
The officers found that the car’s temporary license tags had been reported stolen and that Jackson had no vehicle registration or driver’s license.
Roberts said they acted reasonably in searching the truck for contraband, based on their past experience with such traffic stops.
“My colleagues’ insistence that police should have further questioned Jackson (before searching the trunk) amounts to prescribing preferred investigative procedures for law enforcement,” Roberts complained. “We (appeals court judges) have neither the authority nor the expertise for such an enterprise.”