Alexis de Tocqueville, the French visitor to America in the 19th century, made many sage observations about what he saw. Pertinent here are his comments comparing the president, the Congress and the Supreme Court. He wrote that:
"The President may err without causing great mischief. Congress may decide amiss without destroying the Union. But if the Supreme Court is ever composed of imprudent or bad men, the Union may be plunged into anarchy or civil war."
All this to say that President Bush's nomination of John G. Roberts to be chief justice of the Supreme Court bears very close scrutiny.
Roberts lacks a public paper trail, making him a hard target (some have theorized that's why he was nominated) but he is well known to the right. For at least a year, Leonard Leo, chairman of Catholic outreach for the Republican Party, and Jay Sekulow, counsel for Pat Robertson's Protestant evangelical legal center, were tapped by the White House to reassure conservative allies that Roberts was a good bet in cases about abortion, same-sex marriage and public support for religion.
We do know about his personal life.
Roberts was born in Buffalo, N.Y., but moved to Indiana at the age of 4 when his father was transferred there by Bethlehem Steel. He lived in a "gated golf course community" overlooking Lake Michigan. He attended an exclusive Catholic boarding school where he ranked high in his class, captained the high school football team, and was popular with his classmates.
He finished Harvard College in three years, summa cum laude, and attended Harvard Law School, graduating magna cum laude. He was the managing editor of the Harvard Law Review in 1976.
With these credentials, he earned a clerkship with highly regarded Judge Friendly of the federal circuit in New York. He then clerked for then-Associate Justice William Rehnquist of the Supreme Court. Clerkships are highly prized positions and go to only the brightest. They generally last one year.
Roberts completed his clerkship in time to enlist in the Reagan revolution. In 1981, Roberts joined the Department of Justice as special assistant to Attorney General William French Smith. It was a one-on-one, personal relationship. In 1982 he moved to the Reagan White House, where he served with five others as assistant counsel. Fred Fielding was the counsel, Ed Meese was the counselor. In 1986, he left government to join the prominent Washington, D.C., firm of Hogan and Hartson.
He began working in government once more in 1989 to serve in the first Bush administration as the principal deputy solicitor general under Kenneth Starr. In 1993, with the election of Bill Clinton, he went back to his old law firm. In 2003 he was appointed to the U.S. Court of Appeals for the District of Columbia.
He has argued 39 Supreme Court cases, winning 21 decisions. In most of these cases, Roberts represented corporations. On behalf of the National Mining Association he defended "mountain top removal coal mining" before the Court Appeals for the Fourth Circuit and won. In this type of mining, the coal companies push the top of a mountain into a valley below to get at the coal seams.
Roberts made more than $1 million a year at Hogan and Hartson and has a net worth of $5.3 million. His wife, Jane Marie Sullivan, is also a lawyer and active in Feminists for Life, an anti-abortion group. They were in their 40s when they married and have adopted two children.
So much for the bare bones of his private life. Where does he stand on significant issues of the day? Roberts does not have a long paper trail ... no law review articles, no op-eds, no speeches. But he is not entirely a stealth candidate.
We have the papers he wrote from 1982 to 1986 during his early years with Attorney General Smith and for the Reagan White House. We have the briefs he filed for the first Bush administration from 1989 to 1993, and a few decisions from his first two years on the Court of Appeals.
The record reflects that when the Reagan-Bush administrations reviewed the Carter achievements, there were two views: conservative and more conservative. Roberts was in the "more conservative" camp.
Let's take a look at what we have:
Ahead, the Supreme Court will deal with the "Don't ask. Don't tell" policy of the military, the implications of same-sex marriage under the Full Faith and Credit Clause of the Constitution (does North Carolina have to recognize a Massachusetts same-sex marriage?), and regulations that withhold federal funds from colleges that bar military recruiting (under anti-discrimination policies).
Nothing is known about Roberts' views on such matters; however, the White House secretly told us that he had volunteered to help a "gay group" in a Supreme Court case. Presumably this was to indicate that he was open-minded.
Here are the facts. Some towns in Colorado had enacted human rights laws prohibiting discrimination because of sexual preference. Colorado then amended its constitution to prohibit laws protecting homosexuals. Gays protested, alleging denial of equal protection.
The law firm of Hogan and Hartson has a "pro bono" department, which, among other things, stages mock arguments where the litigants can practice. The lawyer in change of the pro bono program asked Roberts to play the role of a conservative justice on one of these moot courts. He did and asked questions which, later in real life, were asked by Scalia. Roberts' assistance in the case was over in six hours.
There is no doubt that Roberts opposes abortion.
In 1991, in the "gag case" of Rust v. Sullivan, he defended a federal rule that cut off funds to family planning clinics if they advised about abortions or referred patients to other doctors for advice on abortions. Roberts argued that this did not unduly burden the right to an abortion, and in any event, Roe was wrongly decided and should be overturned. Roberts won in the Supreme Court, but the Clinton administration repealed the "gag" rule.
Bray v. Alexandria Women's Health Clinic (1992) was a suit by the clinic to enjoin Operation Rescue from blocking access to abortion clinics. The government was not a party to the case, but intervened on behalf of Operation Rescue.
The issue on trial was whether the protesters in Operation Rescue had conspired to deny a class (women) of their rights under the Constitution. Roberts argued that the blockade of the clinics was not a conspiracy against women but against abortion, ignoring the fact that only women are able to exercise the right to an abortion. Roberts won in the Supreme Court, but the Clinton Congress enacted a law creating a hassle-free "bubble" surrounding clinics.
At his 2003 confirmation hearings, Roberts said that Roe v. Wade was "settled law, and there is nothing in my personal view that could prevent me from fully and faithfully applying that precedent." This statement apparently unsettled the right wing. On July 27, 2005, Attorney General Gonzales said in a press conference that Roe v. Wade is "settled law for lower courts, but the Supreme Court is not obliged to follow it. Justices do not have to abide by a previous Supreme Court ruling if they believe it is wrong."
On Aug. 10, in an interview with Oregon Sen. Ron Wyden, Roberts, when asked what he had meant by "settled law," said it "depends on the bench on which you sit." What may be settled for a circuit court judge, the same may not be true for Justices of the Supreme Court.
Roe v. Wade, watch out!
Roberts is not a friend of civil rights. Here are some examples:
The law, to protect vulnerable women workers, requires "equal pay for equal work." But if the work is not "equal" in terms of skills, responsibility, and so on, the employer can pay male-dominated skills more than he pays female-dominated skills. Thus, a Denver Hospital paid its groundskeepers (male) more than it paid its nurses (women). The nurses asked the hospital to measure the worth of the job and set the wages accordingly. Thus developed the concept of "comparable worth." In 1984, a judge in Washington ordered the state to adopt a "comparable worth" program, and the state appealed. Three Republican congresswomen wrote the White House urging that the government not support the appeal. The correspondence was turned over to Roberts, and he wrote counsel Fred Fielding that he "found it troubling" that the congresswomen were so quick to embrace "such a radical redistributive concept." Their slogan may as well be "from each according to his ability, to each according to her gender."
Roberts opposed affirmative action. The programs were bound to fail, he wrote, because they required "the recruiting of inadequately prepared candidates." (One wonders what his potential colleague Clarence Thomas would say to this.)
In Mobile, Ala., the city council members were elected at-large. Since whites outnumbered African Americans in Mobile, all the elected officials were white. African Americans filed suit, alleging the at-large system denied them the effective right to vote. They wanted election districts where they could elect some persons to represent their own interests.
The Supreme Court ruled against them because they failed to prove that those who originated the at-large system intended to discriminate against the black voters.
Civil rights groups were outraged. Vernon Jordan wrote in an op-ed piece, "[I]ntent is impossible to prove ... local officials don't wallpaper their offices with memos about how to restrict minority groups' members' access to the voting booths."
Bob Dole stepped in with a compromise: Litigants could prove discrimination by proving that the authorities intended to discriminate or the system had the effect of discriminating.
Roberts wrote memos opposing the Dole compromise. It would "lead to a system of proportional representation, establish a quota system ... a notion we believe is fundamentally inconsistent with democratic principals."
Apparently, he thought it better that the minority African-American population goes entirely unrepresented.
The First Amendment prohibits the "establishment" of religion or interference with the "free exercise" thereof. A "wall," wrote Jefferson, to separate church and state.
Roberts hacks away at Jefferson's wall.
In 1985, the Supreme Court held that it was unconstitutional for Alabama to require "a moment of silence for meditation and prayer" at the beginning of school (Wallace v. Jaffree).
Roberts wrote Fielding that this decision was "indefensible" and suggested a Constitutional amendment to overrule the Wallace decision.
In 1991 he argued that it was OK for a rabbi to open a junior high school graduation with a prayer. Parents of school children had objected.
For some years the Supreme Court's standard was to invalidate a practice if either (1) its purpose was religious or (2) its effect would advance religion.
Roberts urged the court to hold that "civil acknowledgement of religion in public life does not affect the Establishment Clause" under a new standard--religious programs are OK "as long as they neither threaten the Establishment of an official religion nor coerce participation in religious activity."
The graduation prayer would not threaten the establishment of an official national religion (as the Church of England), nor would it coerce participation in a prayer as no one was compelled to attend the graduation.
The Supreme Court rejected his argument by a vote of 5-4 with Sandra Day O'Connor voting in the majority.
In 1983, Chief Justice Berger suggested that Congress establish a new super Court of Appeals to lighten the load of the Supreme Court.
Roberts wrote White House Counsel Fielding that this was a "terrible idea." He wrote that if the court was overworked, the remedy was "to take fewer death penalty and prisoner-rights cases."
Roberts was asked about the death penalty at his Court of Appeals hearings in 2003. His only response was that the system would work a lot better to the extent that defendants have adequate representation.
In 1983, former Supreme Court Justice Arthur Goldberg wrote the White House questioning the invasion of Grenada without a congressional declaration of war as required by the Constitution. Roberts wrote back that the invasion "is clearly acceptable as an exercise of executive authority."
Just this summer, Roberts, as a judge on the Court of Appeals for the District of Columbia, held that the president has authority to declare a person an "unlawful combatant and try him before a military tribunal. The Geneva Conventions do not apply, and the President can decide how the detainees at Guantanamo Bay are classified, what rights they will have, who will judge them, how they will be judged, upon what crimes they will be sentenced, and how the sentence will be carried out."
Roberts is not a friend of the environment.
He argued in the case of Lujon v. National Wildlife Federation that the federation lacked standing to challenge the Department of Interior's decision affecting 180 million acres of public land. Federation spokesmen said the case "limited citizen access to the courts and we are troubled."
Then, on the bench, he ruled that Congress had no authority under the Interstate Commerce Clause to protect the Arroyo Toad. Why not? Because, he wrote, the toad "for reasons of its own, lives its entire life in California." Under this rationale of interstate commerce powers, not only is the Endangered Species Act at risk, but also the Minimum Wage Law, the Civil Rights Act, and a whole concept generated in the Roosevelt New Deal battles of the 1930s.
When the Supreme Court struck down a Texas law that permitted school districts to exclude children of illegal immigrants, Roberts took strong issue and wrote that the Justice Department should have entered the case on the side of Texas.
Then there is the case of Ansche Hedgepath. District of Columbia law makes it illegal to eat or drink in subway stations. Adult offenders are warned or receive citations. Not for Hedgepath. An officer saw her eating a french fry and the 12-year-old girl was arrested, searched and handcuffed. Her shoelaces were removed and she was taken in the rear of a squad car to a juvenile processing center. There she was booked, fingerprinted and detained until her mother arrived. She sued to have the arrest record expunged. Was this an unreasonable search and seizure under the Fourth Amendment?
Not so, wrote Judge Roberts. The policy followed here is "rationally related to the legitimate governmental interest in ensuring parents are notified of their children's transgressions."
Patrick Leahy, ranking Democrat on the Judiciary Committee, recently reported that Roberts, when working for Reagan, expressed extremely radical views "on reversing decades of policies on civil rights, voting rights, women's rights, privacy and access to justice."
We can look forward to an exciting hearing.
Meanwhile, there are a number of commonly asked questions that require attention. Here they are with tentative answers:
President Bush won two elections promising to appoint the likes of Justices Scalia and Thomas to the Supreme Court. Why can't he just go ahead and do it?
Because Article II Section 2 of the Constitution authorizes the president to nominate ambassadors, Supreme Court justices and other public officials. It requires the Senate's "advice and consent" to finalize the appointment.
Our history shows that the Senate has utilized its authority by withholding its consent to 28 persons nominated to serve on the Supreme Court, including: John Rutledge, nominated by President Washington in 1795; Roger Taney, nominated by President Andrew Jackson in 1835; John J. Parker, nominated by President Hoover in 1930; Abe Fortas, nominated by President Johnson in 1968; and Robert Bork, nominated by President Reagan in 1987.
Roberts is certainly bright and seems to be a good, nice family man who goes to church regularly. The American Bar Association says he is "highly qualified" for the job. Why go into his political beliefs?
Because where he stands on gay rights, abortion, civil rights, church-state relations, federalism, executive authority and so on will tip the scales of justice in ways momentous to all of us.
Politics has always been a part of the nomination process--by the president in making a nomination and by the Senate giving or withholding its content. The Senate refused its consent to John Rutledge because he opposed the Jay Peace Treaty with Great Britain; Robert Taney because he opposed a federal bank; John J. Parker because of his views on labor and race; Abe Fortas because of his liberal opinions on the Supreme Court; and Robert Bork because of his opposition to abortion.
Roberts seems to be a shoo-in. Isn't it better to give him a pass and save energy for the next fight, replacing Sandra Day O'Connor?
No. It's not over 'til it's over. Caleb Cushing, nominated by U.S. Grant, was defeated at the last minute. A clerk opened an old file cabinet and discovered he had corresponded with Jefferson Davis during the Civil War and recommended friends for appointments within the Confederacy. Stanley Matthews, nominated by Rutherford B. Hayes, was defeated when an old newspaper story came to light telling of his ruthless enforcement of the Fugitive Slave Act. And who can forget the last minute appearance of Anita Hill in the Clarence Thomas hearings?
Roberts seems to be a good man, and if he is rejected, might not the next nominee be worse?
Yes, but remember that Nixon gave us Clement Haynesworth, rejected because of his views on labor and race (plus a little ethics problem). Then he gave us G. Harrold Casswell, rejected because he supported segregation and was "incredibly undistinguished." Then Nixon nominated Harry Blackburn, who wrote the decision in Roe v. Wade.
Roberts was a lawyer. Wasn't he just doing what his clients paid him to do?
This is the "just following orders" defense used by some of the Nazis accused of war crimes. Roberts was not a "hired gun." When he completed his clerkship with Justice Rehnquist in 1981, all doors were open to him. He could have joined the Peace Corps or any number of law firms. He chose to join the Reagan revolution as special assistant to Attorney General French Smith, a one-on-one position. There he was a sounding board, writing policy memos. Then he moved to the White House, where he was asked to make recommendations on legal and policy matters. Then as chief deputy to Solicitor General Ken Starr, he advised on what the government's position should be on all manner of issues pending before the Supreme Court.
He had a wonderful résumé. He was not told what to do. He was hired to recommend policies.
Roberts is Corporate America's "lawyer of choice": the Chamber of Commerce, Chrysler, NBC, etc. For Toyota, he argued that a woman suffering from carpal tunnel syndrome was not necessarily disabled. For the National Beer Wholesalers Association, he argued that Congress had no authority to set a uniform drinking age of 21. On behalf of the National Mining Association, he argued for "mountain top removal coal mining."
With all the doors open to him, this is the life Roberts chose to live.
Is he the kind of person Alexis de Tocqueville warned against?
Daniel H. Pollitt is professor of constitutional law emeritus at the UNC-Chapel Hill School of Law.