Who Is Mr. Roberts?

Illustration By Doug Potter

As the Supreme Court confirmation hearing of John G. Roberts got under way this week in the Senate Judiciary Committee, more than one local court watcher dryly noted that barring some real "important" revelation – like, say, that Roberts has an illegal immigrant mistress that he's kept locked in a closet for a couple of years – it's a foregone conclusion that Roberts will be the court's new chief justice when the new term opens Oct. 3. Judging from his first two days of testimony -- during which he declined to answer most substantive questions -- no such revelations are forthcoming.

This is not because there aren't significant issues to vet, and much to discover about Roberts' legal thinking, but rather because of current national politics. In the first place, the Dems are unlikely to have the votes to block Roberts' nomination – and it definitely won't happen without the support of 10 colleagues who face possibly tricky red-state re-election campaigns next year. Perhaps more significantly, President George W. Bush's renomination of Roberts to replace Chief Justice William Rehnquist, who died last week, leaves swing-vote Justice Sandra Day O'Connor's seat open, and thus keeps hope alive that Bush will tap a centrist candidate to take her place. In other words, swapping Roberts for Rehnquist is a fairly even trade that on its face will not cause the court to swing any further to the right.

Nonetheless, sitting on the high court is a lifetime appointment, and Roberts' relative youth means he could be in a position to significantly reshape Supreme jurisprudence. Critics say that it's imperative that the public knows as much as possible about how he would interpret and uphold the Constitution. "Roberts is 50," says Sarah Wheat, policy director for National Abortion Rights Action League Pro-Choice Texas. "He could be affecting our lives with his rulings for the next 35 years."

There's little argument that Roberts has the credentials and is thus "qualified" for the job. Back in 1980 he clerked for then Associate Judge Rehnquist, whom he reportedly counts, along with former conservative appeals court jurist Henry Friendly, among his most significant mentors. He's a Harvard Law School grad, former special assistant to U.S. Attorney General William French Smith, associate counsel to President Ronald Reagan, and deputy solicitor general (his most powerful government job to date), who was confirmed to the U.S. Circuit Court of Appeals for the D.C. Circuit in 2003, with just three votes against him. He can be both witty and snarky – in an opinion upholding the right of the Washington transit authority to arrest a 12-year-old caught eating a single french fry in a Metro station, Roberts wrote that it was the public and not the courts that should intervene to change potentially foolish policy: "and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry," he wrote. He is smart, polished, TV-ready and, Bush noted last week, a real "gentleman."

His résumé is that of a solidly Republican counselor, and has conservatives pleased – especially in light of clues culled from writings during his time in the Department of Justice under Smith, which suggest that Roberts looks with right-leaning skepticism upon certain hot-button issues, like women's reproductive freedom and affirmative action. In 1981, he wrote that the landmark abortion rights case Roe v. Wade was wrongly decided, and questioned whether the Constitution actually incorporates any real right of privacy. The same comments worry women's rights advocates, who have nearly universally opposed his nomination. "His record on women's reproductive health is solid in its opposition to reproductive rights," says Wheat. The question isn't simply about his views on "safe, legal abortion," she says. The real question is how he views the "full range of [women's] reproductive rights" issues – like access to emergency contraceptives or to any form of birth control – all of which are based on the high court's privacy rulings.

Indeed, it wasn't that long ago that unmarried women weren't given access to birth control, Sarah Weddington – the UT Law professor who successfully argued the Roe case before the high court – reminded reporters last month. For example, she said, UT had its own rule forbidding unmarried women from obtaining contraceptives, unless they could certify that they were just "six weeks to marriage." In 1965, the Supremes struck down such laws in the case Griswold v. Connecticut, ruling that the "right to privacy [includes a woman's decision on] whether to bear or beget a child," she said. A reversal of Roe wouldn't outlaw abortion per se – instead, it would toss the power back to the states to decide, as was the situation before Roe. But Griswold, Roe, and their more contemporary cousins are really about the limits of privacy and autonomy and "the principal that it is a woman's right to make key … reproductive decisions and not the [right of the] government," says Weddington.

Yet, how Roberts views the entire landscape of personal liberty remains something of a mystery, since the Bush administration has rejected repeated requests to release numerous Roberts documents from 1989 to 1993, which opponents argue would likely provide the most contemporary insight into Roberts' legal mind. The administration asserts that the documents related to his job as deputy solicitor general are privileged, presumably because they represent attorney-client communications. (The administration has been vague about its reasons, and the documents are likely old enough to be considered historical, for declassification purposes.)

That's a particular problem for those civil liberties, civil rights, and women's rights advocates who oppose Roberts' confirmation. Without access to those documents, the public has been left to forage through memos Roberts wrote as a twentysomething lawyer, or to look at the few legal opinions he's authored since joining the D.C. Circuit two years ago, to try to determine exactly where he stands on important issues. The fruits of such research have left a sour aftertaste. NAACP Legal Defense Fund President Theodore Shaw says his group's inquiry revealed that Roberts has "consistently" advocated "for weakening federal enforcement of voting rights, affirmative action, school desegregation, fair housing, and other civil rights protections." Shaw points out that if Roberts' youthful opinions had actually been codified, federal courts would've been stripped of jurisdiction in school busing cases, and the Fair Housing Act's "effects test," banning discriminatory housing practices, would have been abolished – among other civil rights rollbacks. Roberts' supporters dismiss such a dim view, noting that the nominee was quite young when he issued the controversial legal opinions. But as Shaw noted late last month, thus far Roberts has done nothing to repudiate those views.