By all accounts, John Roberts is the kind of guy you might want your daughter to bring home for dinner: brilliant, personable, possibly destined for greatness. Even the sternest father — if he’s not too liberal — would probably grant nodding approval, as the Senate is likely to do in the next few weeks, seating Roberts on the Supreme Court. The positive reaction to Roberts since President Bush first nominated him to the court in July undoubtedly contributed to Bush’s decision to choose him Monday to succeed William H.
Rehnquist, who died Saturday after nearly 19 years as chief justice. But as impressive as Roberts has appeared, the most important question about him remains largely unanswered: How would a Chief Justice Roberts affect the country? As the youngest chief justice since 1801, Roberts, 50, would be a potent influence on society for a generation or more. Would he, for instance, vote to reverse existing law on abortion or, more sweepingly, the right to privacy? His record suggests he might. Would he limit Congress’ ability to protect the environment, public health and civil rights?
That, too, is open to question. The Senate Judiciary Committee will plumb for answers in hearings that may begin as early as Thursday, and it needn’t linger long on basics. Roberts easily surpasses the threshold qualifications for justices. By all accounts, he is a brilliant lawyer with a forceful intellect suited to the court. The American Bar Association calls him “well qualified. ” Politically, he’s conservative but not an outspoken ideologue, with little history of brash pronouncements.
But which of the several sharply opposed conservative camps he falls into is in doubt, and the difference stands to affect every American. Roberts’ public record — inconclusive but provocative — raises questions whether he prefers limited government and cautious change, or whether he is an activist who would seek to overturn important Supreme Court precedents and legal protections: Right to privacy. In memos written when he was in the Reagan administration, he disparaged the notion that there is a constitutional right to privacy.
He wrote approvingly of the dissent in the landmark 1965 case that firmly established that right and overturned state laws against birth control. Reversing that decision would reopen the door to government meddling in the most private aspects of life, again criminalizing abortion, gay sex, even contraception. Abortion. As deputy solicitor general for the first President Bush, he signed a government brief urging reversal of Roe v. Wade, the 1973 decision that state laws banning abortion were unconstitutional.
The court has since reaffirmed that decision. Civil rights. Roberts argued for standards that would make it easier for school districts to evade desegregation orders. He also disparaged affirmative action — still sanctioned by the court in some circumstances — as “recruiting of inadequately prepared candidates” and argued that it is unconstitutional. That record raises questions about whether he would restrain the ability of Congress to help those victimized by discrimination. Powers of Congress.
Roberts parted company with the majority of conservative judges on his appeals court two years ago to take a swipe at the constitutional basis of the Endangered Species Act. The narrower interpretation he seemed to suggest could also limit the reach of federal laws regulating health, safety, civil rights, commerce and the workplace. Freedom of speech. He argued that a federal law prohibiting flag burning did not violate the First Amendment, even after the Supreme Court had already declared a nearly identical state law unconstitutional.
Freedom of the press. Roberts wrote a memo challenging the 1964 Supreme Court decision New YorkTimes v. Sullivan, a cornerstone of the freedom to report aggressively on public officials. He suggested reverting to an earlier standard that gave officeholders greater ability to prevail in libel suits. Church-state entanglement. He argued for lowering the wall between church and state and allowing officially led prayers at public school graduations. He criticized the Supreme Court’s decision in another school prayer case as “indefensible. ” Women’s rights.
Roberts ridiculed the notion that women are subject to workplace discrimination or entitled to constitutional protection. He also argued for narrowing the government’s ability to enforce the ban on gender discrimination in education. Roberts’ defenders point out that most of his statements challenging the legal status quo were made while representing either the interests of a private client or the political commitments of an earlier administration. They might not represent his personal views — and many are more than 20 years old. Both assertions are accurate.
Less defensible is that the Bush administration has spurned Senate requests for records later in Roberts career. Senate questioning will have to fill in those blanks. Much will be made at the hearings of the doctrine that Roberts should not be asked to say how he might rule in cases coming before the Supreme Court. But that should not deter senators from demanding to know how he views issues more generally and cases already decided — and the standards he would use to overturn settled law. To suggest that the Senate should simply ignore the impact Roberts would have on constituents is to suggest that i