5 Things You Need to
Know About Roberts
He's going to be on
the Supreme Court for life.
So what kind of
justice will he be?
By NANCY GIBBS, Time
Magazine from the Web, August 29, 2005
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.
|
