WASHINGTON — In what direction is John Roberts most likely to lead the Supreme Court, if the Senate confirms him as chief justice?
Does he have the talent to lead justices who have been polarized on issues such as property rights and the death penalty?
The Senate Judiciary Committee opens hearings at noon Monday that may supply some answers to these questions.
Roberts will be formally presented to the committee by a group of senators including Sen. Evan Bayh, D-Indiana, a contender for the 2008 Democratic presidential nomination. Roberts grew up in Indiana.
"It has been my experience that the hearings are a subtle minuet with nominees answering as many questions as they think they have to in order to be confirmed," said Judiciary Committee chairman Sen. Arlen Specter, R-Pa., in the text released Sunday of his prepared statement that will open the hearings.
How skillfully Roberts handles the interrogation by the members of the committee will determine whether he gets to succeed his old mentor, Chief Justice William Rehnquist, who died Sept. 3. Roberts served as one of Rehnquist’s law clerks in 1980 and 1981.
If confirmed, Roberts, who is 50, would likely serve on the high court for 30 years.
The hearings begin exactly three weeks before the Supreme Court begins it 2005-2006 term, in which it will decide historic cases on abortion, assisted suicide, military recruiting on college campuses, and the rights of prisoners under the Americans with Disabilities Act.
Replacing the conservative Rehnquist with the conservative Roberts will not in itself alter the direction of the court. That will hinge on who the Senate confirms for the vacancy created by the retirement of Justice Sandra Day O'Connor.
President Bush has yet to announce a nomination for that opening. But if Roberts proves to be an adept leader, he could guide the court in a conservative direction for decades to come.
For Bush this is a historic chance to buttress the rightward shift in the nation's politics.
“In some ways this is what the election was about, because the president gets to choose who sits on the federal courts,” said Sen. John Cornyn, R-Texas, one of the Judiciary Committee members who’ll be posing questions to Roberts. “The choice: is the court going to perform its traditional function of interpreting the law — or is the court going to be the primary policy maker in American society?”
What are Roberts’s most deeply held beliefs on combustible issues such as abortion, same-sex marriage, and property rights?
Few people outside his inner circle know. Roberts has never given a speech, written a law review article, or handed down a judicial decision on those issues.
Two years ago, when the Senate was scrutinizing Roberts for the appeals court post he now holds, he said his judicial philosophy “begins with an appreciation of the limited role of a judge in our system of divided powers. Judges are not to legislate and not to execute the law.”
He added that judging cases “requires an essential humility grounded in the properly limited role of an undemocratic judiciary in a democratic republic, a humility reflected in doctrines of deference to legislative policy judgments….”
Expressing his views as an appeals court judge for the District of Columbia Circuit for the past two years, Roberts has written about 50 decisions, concurrences, and dissents.
Since the D.C. circuit handles a docket heavy in cases interpreting arcane federal regulations, most of what Roberts has written has been on specialized topics such as how the Federal Communications Commission operates its auctions of the spectrum between 218 and 219 megahertz.
Girl arrested for eating French fry
Probably the most famous ruling Roberts has written was last year’s “French fries” decision, arising from the arrest and handcuffing of a 12-year old girl at a Washington, D.C. Metro subway station. She was eating a French fry in violation of the Metro system’s rules.
Roberts’s decision illustrated his practice of deferring to government agencies when their actions have some rational basis.
His personal view was that the decision to arrest the girl was not good police policy. But he declined to overrule the decision because it did not raise constitutional questions, as the girl’s lawyer claimed it did.
Under the subway system’s rules — later changed after a public outcry — adults were given a citation or ticket for eating food on the subway, but juveniles were arrested.
The Metro’s policy of arresting minors was not “worth the youthful trauma and tears,” Roberts wrote, but, he added, “It is not our place to second-guess such legislative judgments.”
He explained that the question facing him and his two appeal court colleagues “is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not.”
One might expect that if confirmed, Roberts might likewise refrain from overturning federal and state laws which he personally thinks are “a bad idea,” but which don’t run afoul of the Constitution.
The chief as consensus builder
Although the chief justice has only one vote, just as his eight colleagues do, a skillful chief can sometimes bring discordant justices together. Yet even the adroit Rehnquist found this difficult with the current court.
“The Rehnquist court has been a very divided court,” said Sen. Ken Salazar, D-Colo., after conferring with Roberts on Friday for nearly an hour. “You don’t have a Chief Justice Warren on the court that would bring nine justices together…. What we end up having today is a lot of cases decided on a 5-to-4 split and each one of the justices writing their own concurring opinion.”
Specter also voiced hope Roberts could unite the court.
“Judge Roberts may have a real chance to bring the court together, based on the personality which I have seen, if he is confirmed,” Specter said last week.
Who is the real John Roberts?
In seeking "the real John Roberts,” the glimmers one gets from memoranda he wrote 20 years ago as an aide to Attorney General William French Smith or as associate White House counsel may not reflect his current thinking, nor do they reveal much about how he would apply his views of 20 years ago, if he still holds them, to cases that might come before the court in the future.
For instance, in a memo Roberts wrote on Oct. 4, 1985 to his boss, White House counsel Fred Fielding, Roberts said that he had no legal objection to President Reagan sending a message of support to a group of doctors who were holding a memorial service for 16,500 aborted fetuses discovered in shipping crates at a California medical laboratory.
“The President’s position is that the fetuses were human beings, or at least cannot be proven not to have been,” Roberts wrote.
“Accordingly a memorial service would seem an entirely appropriate means of calling attention to the abortion tragedy,” he told Fielding.
Twenty years later, Roberts may still think that abortion is a tragedy, but his deference to long-standing legal doctrine might lead him to uphold the 1993 Casey v. Planned Parenthood decision that says state and local governments can’t pose “an undue burden” on a woman who seeks an abortion.
Will he vote to undo Roe v. Wade?
Roberts did say during his 2003 confirmation hearings that the 1972 Roe v. Wade abortion decision “is the settled law of the land.”
But on many occasions, the justices have overturned the settled law of the land: last March, for instance in a 5-4 decision, the court banned the death penalty for convicted murderers under age 18, reversing a decision it had handed down in 1989.
On race, Roberts’s Senate critics are likely to grill him on a decision he made 15 years ago when he served as acting solicitor general, the government’s top appellate lawyer, and took the extraordinary step of arguing against a federal policy.
Normally the solicitor general defends federal policies before the Supreme Court.
The FCC regulation at issue, dating from 1978, gave preferences to black, Latino, American Indian, and Asian applicants over white applicants for radio and television licenses.
“The FCC's policy classifies on the basis of race and is therefore constitutionally suspect,” Roberts wrote.
“The minority preference policy is not aimed at correcting the actual effects of past discrimination,” he argued, adding that the policy “does not permit an inquiry to determine whether any particular minority applicant was in fact not disadvantaged by past discrimination.”
Although Roberts lost that 1990 case, he got a belated victory five years later when the Supreme Court reversed itself and, in a decision written by O’Connor, essentially upheld Roberts’s arguments.
Famous as a lawyer for his preparation for his 39 oral arguments before the Supreme Court, at noon Monday Roberts begins arguing the biggest case of his life, with himself for a client.