The Real John Roberts


With the nomination of John G. Roberts, Jr., President George W. Bush now stands on the verge of a lasting legacy as a president who changed the face of American law. . . . Bush is about to secure a consistent conservative majority on the Supreme Court that will likely sweep away a host of doctrines in areas ranging from abortion to affirmative action to presidential powers. Law professor Jonathan Turley, George Washington University, National Law Journal, August 1

Professor Oona A. Hathaway, Yale Law School, a former law clerk to Justice [Sandra Day] O’Connor, said [that] the arrival of Judge Roberts ‘could re-center the court’ in the direction of unchecked presidential power. The New York Times July 24

Having read the huge outpouring of John Roberts’s memoranda during his stays at the Justice Department, along with his filings and arguments in his private-practice cases, I decided that his two-year record on the nation’s second most influential court, the District of Columbia Circuit Court of Appeals, should be my initial focus on the effect on our lives of the 30 or more years he will sit on that tribunal. (As I write, his confirmation appears to be foreordained, after the current turbulent hearings before the Senate Judiciary Committee.)

Before Roberts became a circuit court judge, his supporters say, he functioned as an advocate for the government or his private clients, and thereby his views in those cases did not necessarily reflect his core personal beliefs. But as a judge, John Roberts was speaking only for John Roberts.

In Hamdan v. Rumsfeld, decided on July 15, 2005, a three-judge D.C. court panel, including Roberts, ruled on how much deference the Congress and the courts should give the president during the war on terror. This case is at the very core of Bush’s worldwide anti-terrorism strategy.

Neal Katyal, a law professor at Georgetown University—and the attorney for Salim Ahmed Hamdan, who has been a prisoner at Guantánamo for three years, much of the time in solitary confinement —said of the decision by Roberts and his colleagues on the “military commission” Bush has set up for Hamdan and other prisoners:

“[It] vests the president with the ability to circumvent the federal courts and time-tested limits on the executive . . . . No decision, by any court, in the wake of the September 11, 2001, attacks has gone this far.” (Emphasis added.)

Professor Katyal is not engaging in hyperbole.

The Hamdan decision gave the president (and by precedent, his successors) the unreviewable power—outside the jurisdiction of civilian courts, and what have been up to now the due process protections of military courts—to strip U.S. detainees of the humane Geneva Conventions on the treatment of prisoners. This is an international treaty the United States has ratified—as is the international treaty Covenant Against Torture, which the Bush administration has also violated.

Roberts indicated that if he is confirmed, he will recuse himself from cases in which he was involved on the D.C. Circuit Court, but his legal reasoning in this decision reveals a great deal about his reverence for presidential powers and his willingness to validate a separate legal system on these issues that has been constructed since 9-11 by the president, Donald Rumsfeld, and attorneys general John Ashcroft and Alberto Gonzales.

In these cases, I often consult an expert in constitutional law, appellate attorney Jonathan Freiman (also involved in this case), who is, in addition, a senior fellow at Yale Law School. He points out that in the Hamdan decision, John Roberts disregarded “the plain text of the [Constitution’s] Supremacy Clause . . . which unambiguously states: ‘ . . . all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land.’ ”

Freiman emphasizes that Roberts joined this part of the opinion “without reservation.” Moreover, Roberts and his colleagues bypassed the congressional habeas corpus statute. (The Founders made sure that the crucial right of a prisoner to challenge the lawfulness of his imprisonment is in the body of the Constitution.)

The habeas corpus statute, Freiman notes, “allows someone held by the government to petition a court for release when he believes that he is ‘in custody in violation of the Constitution or treaties of the United States.’ ”

Moreover, Freiman warns us: “[Roberts’s] willingness to erase the word ‘Treaties’ from our Constitution and laws might mark [him and his two colleagues] not just as jurists willin
g to depart from the plain meaning of legal texts, but also as legal isolationists, turning away from the treaties that bind this nation to the civilized world.” (Emphasis added.)

So radical was the decision Roberts joined that, as Katyal says in his petition to the Supreme Court for review: “An emblematic example of the break with our country’s traditions” is that Hamdan has no right to be part of most of his own trial.There is
no instance, emphasizes Katyal, “either civil or military, in our nation’s 229-year history, where trial procedures were specifically engineered to force a non-disruptive defendant to be excluded from his trial.” Also, at these “trials,” a defendant’s representative is forbidden to see the core of the so-called evidence against the defendant, which is secret.

Moreover, Katyal told the Supreme Court—quoting a Neil Lewis report in the August 1, 2005, New York Times—that some military prosecutors involved in Hamdan’s trial were so concerned it be fair that they have charged that “the chief prosecutor had told his subordinates that members of the military commission that would try the first four defendants (which include Hamdan) would be ‘handpicked’ to ensure that all would be convicted.” (Emphasis added.) But John Roberts has said nothing about that.

In his 2003 State of the Union Address, George W. Bush, speaking of the many suspected terrorists arrested by the U.S., added: “Many others have met a different fate. Let’s put it this way. They are no longer a problem for the United States.”

Will those disappeared suspects—including the “ghost detainees” at secret CIA interrogation centers around the world—be a problem for Justice John Roberts as he defers to unilateral presidential powers?