The Conservative Record of Judge John Roberts

July 23, 2005
By Gene C. Gerard

President Bush has nominated Judge John Roberts to replace Sandra Day O’Connor on the Supreme Court. After graduating from Harvard Law School in 1979, Mr. Roberts was a law clerk for Supreme Court Justice William Rehnquist. He went on to serve in the Reagan administration as an assistant to Attorney General Smith and as an associate White House legal counsel. He also served as deputy solicitor general in the administration of Mr. Bush’s father. He was in private practice until 2003 when he was confirmed to the U.S. Court of Appeals for the District of Columbia.

Many people hoped that Mr. Bush would appoint a moderate Republican in the mold of Justice O’Connor. Unfortunately, Judge Roberts is a solid conservative. While his legal record will be reviewed intently over the course of the next few months, his role in the following cases will likely take center stage.

In 1980, the Supreme Court overturned portions of the Voting Rights Act in the case of City of Mobile v. Bolden. The Court ruled that portions of the act could only be violated by intentional discrimination and not as a result of laws that had the unintended consequence of being discriminatory. Congress debated creating a law to offset this ruling. Mr. Roberts, while in the Reagan administration, attempted to squash this effort.

As deputy solicitor general in 1990, Mr. Roberts wrote a brief on behalf of the government in the case of Rust v. Sullivan, which pertained to the prohibition of federal funding for family planning clinics if they discussed abortion with their patients. Mr. Roberts wrote, “…Roe was wrongly decided and should be overruled…[T]he Court’s conclusion in Roe that there is a fundamental right to an abortion…find[s] no support in the text, structure, or history of the Constitution.”

Later that year, Mr. Roberts authored a brief in the case of United States v. Eichman. He argued that making flag burning a criminal offense was constitutional, noting, “[t]he First Amendment does not prohibit Congress…from removing the American flag as a prop available to those who seek to express their own views by destroying it.” However, the Supreme Court disagreed, ruling that “…[p]unishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.” It’s worth noting that even ultra-conservative Justice Scalia sided with the Court majority in this ruling.

In 1991, Mr. Roberts wrote a brief in the case of Lee v. Weisman, in which he encouraged the Supreme Court to rule that it was lawful for public schools to sponsor a prayer during graduation ceremonies. Mr. Roberts wrote that while forcing students to participate in a religious ceremony was inappropriate, this would not be the case as students opposing the prayer could simply skip the graduation ceremony. However, the Supreme Court disagreed, ruling that allowing the school prayer would be coercive.

In the case of Bray v. Alexandria Women’s Health Clinic, Mr. Roberts wrote a brief in 1993 in which he argued that organizations which physically block access to abortion clinics were not discriminating against women. However, in his brief, he admitted, “only women can have abortions.”

In 2000, while in private practice, Mr. Roberts argued the case of Williams v. Toyota Motor Mfg., KY., Inc., before the Supreme Court. The National Coalition for Disability Rights maintains that Mr. Roberts’ legal briefs and oral arguments “distorted the facts of the case and minimized the extent of Ella Williams disability.” The Court ruled in favor of Toyota and created a new test to determine who meets the legal definition of being disabled. Consequently, it is now more difficult for the disabled to prove violations of the Americans With Disabilities Act in the courts.

Mr. Roberts wrote an advisory brief in 2001 in reference to the case of Adarand Constructors, Inc. v. Mineta. In the brief, he criticized affirmative action programs within the U.S. Department of Transportation.

In 2003, after joining the U.S. Court of Appeals for the District of Columbia, Judge Roberts disagreed with the Court’s ruling in the case of Rancho Viejo, LLC v. Norton. The Court ruled that the Endangered Species Act could be used to prevent a real estate development company from building on land that would have jeopardized the continued existence of a rare toad. Judge Roberts’ dissent strongly suggests that he supports overturning the Endangered Species Act and limiting Congress’ ability to protect the environment.

Last year, in the case of Hedgepeth v. Wash. Metro. Area Transit Auth., Judge Roberts ruled that equal protection rights provided by the Fourth and Fifth Amendments were not violated by a law that mandated that an adult who commits a crime be given only a citation, while children guilty of the same crime be arrested. Judge Roberts ruled that the harsher treatment of children encouraged “…the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.”

In the case of Acree v. Republic of Iraq, 17 U.S. soldiers who were captured and tortured during the Gulf War filed a suit under the terrorism exception to the Foreign Sovereign Immunities Act against Saddam Hussein. A lower court ruled in favor of the soldiers and awarded damages in excess of $959 million. However, the Bush administration appealed, arguing that since this was a time of war the Court had no jurisdiction. Judge Roberts sided with the Bush administration’s argument last year, which would strip Americans tortured in Iraq of the right to seek legal recourse.

President Bush said that he nominated Judge Roberts because he “is widely admired for… his sound judgment.” That will no doubt be debated over the course of the next few months. And based on his opinions in these cases, there's much for Democrats to debate.