Roberts the Elder

John Roberts has an understated personality, but his record will be all torpedo.

If Roberts is true to his past, Roe might not be around when he turns 64. During the Reagan administration, Roberts argued for the appointment of pro-life judges and supported a memorial service for aborted fetuses as "an entirely appropriate means of calling attention to the abortion tragedy." He has referred to Roe as "wrongly decided" and based on "the so-called right to privacy."

Roberts the Elder will likely be known as the chief justice who curtailed affirmative action and narrowed the scope of anti-discrimination laws. He has repeatedly and consistently railed against racial and gender preferences. As an attorney, Roberts co-authored briefs against court desegregation plans and opposed set-aside programs for minority contractors. In 1995 he said, "You don't overcome racism by engaging in it yourself." He has also criticized efforts to require "comparable worth" wages for women as a "radical redistributive concept." He criticized congressional women seeking such language as adopting a view of "From each according to his ability, to each according to her gender." Roberts also made controversial statements in 1985 (which he is likely to retract in his hearings) that "some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

He is also likely to be known as a chief who held the line on citizen and prisoner lawsuits. In 1981, he advocated greater challenges on standing to keep some groups out of court and more recently praised opinions that barred environmentalists from suing to protect animals outside of the country. The true Roberts was probably captured in a 1993 law review article when he denounced past public interest litigation as demanding judicial review "at the behest of any John Q. Public who happens to be interested."

President George W. Bush announcing the nomination of John Roberts for Chief Justice, September 5.
photo: White House photo by Paul Morse
President George W. Bush announcing the nomination of John Roberts for Chief Justice, September 5.

And Roberts the Elder will likely maintain, if not expand, the federalism revolution led by Rehnquist, striking down any statutes that encroach on states' rights or usurp state authority. This is likely to include a fairly harsh record on environmental statutes. His past litigation, writings, and opinions reveal a fairly antagonistic view of environmental interests, including a strident dissent in an Endangered Species Act case that questioned the very application of such environmental laws to the states.

Finally, in 25 years, the Roberts Court is likely to refashion the meaning of the religion clauses in favor of a greater accommodation of religion. On issues like school prayer and the Ten Commandments, Roberts may have the voting bloc to rewrite and clarify the rules for the separation of church and state. Indeed, Roberts has described the courts as hostile to religion in school cases and has stated that the position of the courts that the Constitution prohibits a moment of silence "or even silent prayer" is "indefensible."

Roberts wasn't nominated to be passive or deferential. Since his earliest years as a clerk, he was almost engineered for this moment. Once O'Connor has been replaced by a reliable conservative, Roberts could become a live torpedo in a harbor crowded with 5-4 doctrines—the result of decades of stagnant division that may now be coming to an end. Anywhere Roberts turns as chief justice, he will find cases that can now be reshaped in a more conservative image. Even with a respect for precedent, Roberts was not trained, groomed, and nominated to let this moment pass.

Of course, the fun thing about predicting how things will be in 25 years is that few people will remember to look me up when Roberts receives the ACLU award for lifetime achievement. What should be clear is that the senators have about as much chance of uncovering the true John Roberts as they do of digging up the true Jimmy Hoffa. Short of Congress passing out totem animals and divining rods, John Roberts will be confirmed as a jurist known only to God and the White House counsel.

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