That John Roberts is bright, personable, Catholic and a devoted father is significant, but less important than how he will vote. The Democrats ought not to give him a pass. His nomination is far more important than the nominations of Clarence Thomas and Antonin Scalia or the failed nomination of Robert Bork. He would fill the seat of the swing vote in a court dominated by 5-4 decisions. At 50 years old, he will significantly influence a solid, radical conservative court that will control many aspects of our lives for the next 25 years. Chief Justice Charles Evans Hughes said that “90 percent of judicial decisions are based on bias, prejudices, and personal and political motivation, and the other 10 percent is based on the law.” We have a personal and paper trail that tells us with a great deal of certainty how he will arrive at 90 percent of his decisions.
His background as a successful private practitioner is given more emphasis in the press than the substantial years he spent in government service. After clerking for two years, one year for Chief Justice William Rehnquist, he became not just another lawyer working for the Reagan and Bush I administrations—he was the political deputy in the Solicitor General’s office. Selected primarily for his ideology, he argued in the Supreme Court to overrule Roe v. Wade, to permit prayer in schools and to punish dissidents. Of course the briefs express his personal views; he wouldn’t have been there if they didn’t. It insults him to claim otherwise.
During his two years as a judge, he consistently voted in support of authority—for governments, corporations, the military and the police. His brief in Rust v. Sullivan called for Roe v. Wade to be overturned, even though the constitutionality of Roe was not at issue in that case. The argument was unnecessary. One legal scholar called it “grandstanding.” Amicus briefs are often more reflective of a lawyer’s view than briefs authored on behalf of a litigant. In Bray v. Alexandria Women’s Health Clinic, Judge Roberts co-authored an amicus brief on behalf of various radical anti-choice groups arguing that blocking abortion-clinic access was not an act of discrimination against women, even though it targeted women exclusively based on a condition unique to women: pregnancy.
Judge Roberts talks about his respect for precedent and stare decisis. But he co-authored a government brief urging the court to disregard long-established law and to find it constitutional for a public school to sponsor a prayer at graduation ceremonies. That issue will soon again be before the court. If he’s confirmed, Judge Roberts will disregard Lee v. Weismann, the 1973 precedent that found public prayer unconstitutional.
Judge Roberts co-authored the government’s brief in United States v. Eichman, defending the constitutionality of the federal law criminalizing flag burning, even though the Supreme Court one year earlier, in Texas v. Johnson, had ruled a similar state statute unconstitutional. The Supreme Court rejected his argument. Judge Roberts, who claims a commitment to stare decisis and precedent, was willing to urge a virtually instantaneous overruling of Texas v. Johnson.
We do know how Judge Roberts will likely vote on the important cases facing the court this fall. In the court’s first week in October, it will hear the Bush administration’s challenge to Oregon’s “right to die” law. An appeals court noted that Oregon voters have twice passed state laws permitting assisted suicide. Pro-life/anti-abortion groups, including groups supported by Judge Roberts’ wife, have filed briefs in support of the administration. Judge Roberts’ appreciation for states’ rights will not overrule his commitment to find the law unconstitutional.
Two abortion cases, including a partial-birth abortion case, very likely will go against abortion advocates. Sandra Day O’Connor rejected, and Judge Roberts accepts, requirements for parental notification, even if there is a medical emergency. That issue is to be decided in Ayotte v. Planned Parenthood, a New Hampshire case that will be argued on Nov. 29, 2005.
Judge Roberts’ Circuit Court decisions make clear that he is against federal regulation—whether it be in the environmental, administrative or economic areas. The Federalist Society, of which he is a prominent and active member, had a program entitled “Rolling Back the New Deal: A Review of Economic Regulation.” More economically sophisticated than either Justice Scalia or Justice Thomas, he can emerge as the conservatives’ point man on economic matters, leading the already-started rejection of the New Deal court’s “commerce clause” decisions.
Very troublesome is his view of a President with expanded powers—a position embraced by the Bush White House. In the Hamdan decision, issued the week before he received the Supreme Court nomination, Judge Roberts permitted Mr. Bush to use military rather than civil commissions to try those enemy combatants. The President’s view that the Geneva Convention doesn’t apply at these trials, Judge Roberts said, is to be given “great weight.” Judge Roberts thus agreed that the Geneva Convention doesn’t apply, asserting the power of the President in wartime more strongly than any recent court anywhere. If confirmed, Judge Roberts will have many other chances to make decisions that will anger civil libertarians.
The reach of federal anti-discrimination laws and the Americans with Disabilities Act will again be challenged—Justice O’Connor was recently the fifth vote to expand those rights. Judge Roberts will reject Congress’ decisions and go the other way. There are three death-penalty cases already accepted for the next term. While Justice O’Connor didn’t reject capital punishment outright, she found enough individual circumstances that narrowed the application of the law. This term, in a capital-punishment case where the court is being asked to reject a DNA argument and affirm a doubtful old conviction, Judge Roberts will vote to affirm where most likely Justice O’Connor would have voted to reverse.
Justices Scalia, Thomas and Rehnquist—and Judge Roberts in his Circuit Court decisions—use words and terms like “textualists,” “judicial restraint” and “stare decisis” when it suits them; when it doesn’t they assert the Supreme Court’s and the President’s rights over the rights of Congress. The claim that he favors judicial caution is inaccurate. Judge Roberts favors judicial restraint when it comes to interfering with state-court criminal convictions. He doesn’t favor judicial restraint when Congress has passed laws he disagrees with—and he doesn’t favor judicial restraint when it comes to giving the President the broadest of powers.
Although Judge Roberts gave speeches to the Federalist Society and is listed as a member of the Federalist Steering Committee, put together by Robert Bork, he claims he doesn’t remember joining the Federalists.
We know how Judge Roberts will vote on the issues of today, and perhaps for the next three decades. Congress should explore his views so the American people will know the consequences of his nomination.