John G. Roberts Jr.

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John Glover Roberts Jr. (born in Buffalo, New York, 1955) is the 17th Chief Justice of the Supreme Court of the United States, replacing Associate Justice Sandra Day O'Connor. Formerly a judge on the United States Court of Appeals for the District of Columbia, Roberts was nominated by President George W. Bush on September 5, 2005 to the Supreme Court after the death of William Rehnquist, for whom he served a clerk early in his career. Roberts was confirmed by a 78-22 vote of the United States Senate and sworn into office on September 29, 2005.

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Background

Roberts graduated from Harvard College in 1976. Roberts receivied his Juris Doctorate from the Harvard Law School in 1979.

He was a law clerk for Henry Friendly, U.S. Court of Appeals for the Second Circuit, 1979-1980, and for Associate Justice William Rehnquist, Supreme Court of the United States, 1980-1981. He then took a job as special assistant to William French Smith, the attorney general, U.S. Department of Justice, 1981-1982, before being appointed associate counsel to President Ronald Reagan, White House Counsel's Office, 1982-1986 during the Iran/Contra activities.

He entered private practice in 1986 as an associate at the Washington D.C. law firm of Hogan & Hartson, but left to serve from 1989-1993 as Principal Deputy Solicitor General under Kenneth Starr, during the administration of President George H.W. Bush. He was the “political deputy” in the Solicitor General’s office and thus, unlike career Deputy Solicitor Generals, cannot dismiss positions he took as simply arguments he was forced to make as part of his obligation to zealously represent the interests of his client, the federal government. While in the Solicitor General’s office during the Bush administration, Roberts co-authored briefs in a number of controversial cases.

After Bill Clinton took office, Roberts returned to Hogan and Harston in 1993 as a partner, where he remained until he was appointed to the Court of Appeals for the District of Columbia by President Bush.

In private practice and as Principal Deputy Solicitor General he has argued more than 30 cases in front of the United States Supreme Court.

Judicial outlook and record

Roberts was floated as a nominee who could win widespread support in the Senate. This is based on the fact that he hasn't been on the bench long enough for his judicial opinions to provide much ammunition for opposition groups. But his record as a lawyer for the Reagan and first Bush administrations and in private practice is down-the-line conservative on key contested fronts, including abortion, separation of church and state, and environmental protection.

As noted on Law.com, many who know Roberts say he, unlike Souter, is a reliable conservative who can be counted on to undermine if not immediately overturn liberal landmarks like abortion rights and affirmative action. Indicators of his true stripes cited by friends include: clerking for Rehnquist, membership in the Federalist Society[1], laboring in the Ronald Reagan White House counsel's office and at the Justice Department into the Bush years, working with Kenneth Starr among others, and even his lunchtime conversations at Hogan & Hartson. "He is as conservative as you can get," one friend puts it. In short, Roberts may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas.

Civil Rights and Liberties

As Special Assistant to Attorney General Smith in the Justice Department, and as counsel in the Reagan White House, Roberts compiled a staunch record of hostility to civil rights. For a unanimous panel, denied the weak civil rights claims of a 12-year-old girl who was arrested and handcuffed in a Washington, D.C., Metro station for eating a French fry. Roberts noted that "no one is very happy about the events that led to this litigation" and that the Metro authority had changed the policy that led to her arrest. (Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004).

Documents compiled from a FOIA request suggest that Roberts played a significant role in supporting the Reagan Administration’s “race-neutral” approach to combating discrimination. With regard to remedies for segregated public schools and employment discrimination, Roberts advised the Attorney General about the Justice Department’s disagreement with a U.S. Commission on Civil Rights report, which had asserted that mandatory busing and “the fullest use of…affirmative action” were necessary. Roberts explained the Department’s position that, “the objective of a proper desegregation remedy” was simply “the end to official discrimination on the basis of race,” a position that effectively eliminated much of the government’s traditional role in working to eradicate the effects of prior discrimination.

After a 1980 Supreme Court decision, Mobile v. Bolden, dramatically weakaned certain sections of the Voting Rights Act, Roberts was involved in the administration’s effort to prevent Congress from to making it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act by the ruling. The Supreme Court had decided, despite a lack of textual basis for this interpretation of the statute, that plaintiffs claiming certain violations of the Voting Rights Act, such as minority vote dilution, had to prove that the discrimination was intentional rather than just having a discriminatory effect. Roberts joined the Administration in opposing the “Section 2” extension of the Act, strongly supported by both the House and the Republican-controlled Senate, which would have reinstated the effects standard. Instead, he participated in the effort to amend the extension of the Act so that voting rights plaintiffs would continue to have to prove discriminatory intent, a much harder task. As the Washington Post stated:

Opponents of [the effects standard] say this would require courts to strike down any voting system that didn’t result in proportional representation. Not true. It would simply reinstate the standard used by the courts before the Supreme Court decision in Mobile v. Bolden, a 1980 case requiring proof that the drafters of the law in question intended to discriminate – a standard that is virtually impossible to meet since the legislators in question have all been dead for years

He has taken a strongly pro-government position in the Guantanamo Bay case Hamdan last week, ruling that prisoners there have no enforceable human rights.

In private practice, wrote a friend-of-the-court brief arguing that Congress had failed to justify a Department of Transportation affirmative action program. (Adarand Constructors, Inc. v. Mineta, 2001). He also argued against Title IX as applied to the NCAA in NCAA v. Smith.

Separation of Church and State

For Bush I, co-authored a friend-of-the-court brief arguing that public high-school graduation programs could include religious ceremonies. The Supreme Court disagreed by a vote of 5-4. (Lee v. Weisman, 1992)

Environmental Protection and Property Rights

As Acting Solicitor General, Roberts was the government’s lead counsel before the Supreme Court in Lujan v. National Wildlife Federation, a 1990 case brought by citizens seeking to enforce environmental protections in response to the Bush’s move to open 4,500 acres of public land to mining activity. Plaintiffs asserted that they would be injured by the government’s decision to open the land to mining, citing recreational activities in which they had engaged and planned to engage in the future in that area.

Despite express statutory authorization for such suits, however, Roberts argued that plaintiffs, members of the National Wildlife Federation, had no right to file the claims, because they had not presented sufficient proof of the impact of the government’s actions on them to give them standing. He asserted that the D.C. Circuit, which had granted standing, had “presum[ed] facts that the parties did not ‚ and perhaps cannot — allege on their own.” The Supreme Court adopted Roberts' argument, tightening standing requirements for federal cases in one of a line of cases making it harder for plaintiffs to challenge governmental actions detrimental to the environment.

Roberts voted for rehearing in a case about whether a developer had to take down a fence so that the arroyo toad could move freely through its habitat. Roberts argued that the panel was wrong to rule against the developer because the regulations on behalf of the toad, promulgated under the Endangered Species Act, overstepped the federal government's power to regulate interstate commerce. At the end of his opinion, Roberts suggested that rehearing would allow the court to "consider alternative grounds" for protecting the toad that are "more consistent with Supreme Court precedent." (Rancho Viejo v. Norton, 2003)

Interstate Commerce Clause

The Constitution authorizes Congress to regulate interstate commerce. In FDR's first term, the Supreme Court created a constitutional crisis by relying on a narrow reading of the interstate commerce clause to declare New Deal legislation to be unconstitutional. The crisis ended in 1937 when the Court overruled the anti-New Deal decisions, and the settled understanding for decades was that courts must defer to Congress on regulation of interstate commerce. As Roberts testified to Congress in 2003, “many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren’t going to be thrown out that way.” In recent commerce clause cases such as U.S. v. Morrison and U.S. v. Lopez however, the Supreme Court has reverted to the right-wing judicial activism that was repudiated almost 70 years ago.

Roberts’ dissent in Rancho Viejo v. Norton, discussed in this article under Environmental Protection and Property Rights, relied on an expansive reading of Morrison and Lopez to assert that Congress cannot regulate collateral damage (such as the killing of arroyo toads) caused by interstate commerce, unless Congress demonstrates to the satisfaction of reviewing judges that the collateral damage itself substantially affects interstate commerce. By preventing Congress from establishing national standards for limiting collateral damage caused by interstate commerce, the views expressed in Roberts’ dissent could lead to a race to the bottom, as states compete with each other to offer the most relaxed regulatory environment to lure major commercial activity.

Roberts clerked for Rehnquist, who has been instrumental in reducing the power of Congress under the interstate commerce clause. NPR reported that Rehnquist is known to insist that his clerks share his views on the interstate commerce clause.

Criminal Law

Joined a unanimous opinion ruling that a police officer who searched the trunk of a car without saying that he was looking for evidence of a crime (the standard for constitutionality) still conducted the search legally, because there was a reasonable basis to think contraband was in the trunk, regardless of whether the officer was thinking in those terms. (U.S. v. Brown, 2004)

Habeas Corpus

Joined a unanimous opinion denying the claim of a prisoner who argued that by tightening parole rules in the middle of his sentence, the government subjected him to an unconstitutional after-the-fact punishment. The panel reversed its decision after a Supreme Court ruling directly contradicted it. (Fletcher v. District of Columbia, 2004)

Privacy and Medical Choice (Abortion)

In more than one case, Roberts has taken positions hostile to women’s reproductive rights and medical choice. Overturning Roe v. Wade was such a primary focus of the Reagan Administration's Justice Department while Roberts was in the administration, that during an oral argument by the nominee to the Supreme Court a Justice asked, "Mr. Roberts, in this case, are you asking that Roe v. Wade be overruled?" His reply was, "No your honor, the issue doesn't even come up." To this the justice replied, "Well that hasn't prevented the Solicitor General from taking that position in prior cases."

In his 2003 confirmation hearings to the D.C. Court of Appeals in, Roberts claimed repeatedly that he was doing his job representing the administration and not voicing his personal views. Roberts demurred to senators that "Roe v. Wade is the settled law of the land," and "There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Rust v. Sullivan

As Deputy Solicitor General he was a co-author of the government’s brief in Rust v. Sullivan, the 1991 case in which the Supreme Court upheld newly altered Title X regulations that prohibited domestic family planning programs receiving federal aid from giving any abortion-related counseling or other services. The provision barred clinics not just from “counseling clients about abortion” but even “referring them to facilities that provide abortions.” Roberts’ brief argued that the regulation gagging the government-financed programs was necessary to fulfill Congress’ intent not to fund abortions through these programs, despite the fact that members of Congress, including sponsors of the amendment dealing with abortion, disavowed this position and that the Department of Health and Human Services’ had not previously interpreted the provision in such a rigid and restrictive manner.

Moreover, Roberts argued, even though the case did not directly deal with Roe v. Wade, that “[w]e continue to believe that Roe was wrongly decided and should be overruled… The Court’s conclusion in Roe that there is a fundamental right to an abortion… finds no support in the text, structure, or history of the Constitution.”

Bray v. Alexandria Women’s Health Clinic

Also as Deputy Solicitor General, Roberts filed an amicus curiae brief in support of Operation Rescue and named individuals who routinely blocked access to clinics. The brief argued that the protesters’ behavior did not discriminate against women and that blockades and clinic protests were protected speech under the First Amendment. This case, Bray v. Alexandria Women's Health Clinic, spurred the Congress to enact the Freedom of Access to Clinic Entrances Act.


Roberts co-authored the government’s amicus brief in a private suit brought against Operation Rescue by an abortion clinic it had targeted.14 The brief argued that Operation Rescue was not engaged in a conspiracy to deprive women of equal protection. Roberts took this position in spite of Operation Rescue’s admission that its goal was to prevent women from obtaining abortions and to shut down the clinic during its protests. Although the government’s brief acknowledged that only women could become pregnant, it argued that conspiring to prevent people from seeking constitutionally-protected abortions did not constitute gender discrimination. It asserted that, at worst, Operation Rescue was discriminating against pregnant people, not women.

The brief in Bray also took the additional step of pointing out that the Supreme Court had not previously decided whether women were protected from private conspiracies to violate their equal protection rights, under the relevant civil rights statute,and urged the Court not to reach a decision on this question, rather than arguing that the Court should definitively state that women should be afforded protection by the statute, as was within the Court’s power in this case.

The Supreme Court accepted Roberts’ argument in a 5-1-3 decision, with Justices O'Connor (the justice whose seat he is being nominated for), Stevens, and Blackmun dissenting. However, Justice Souter, while jopining the majority, disdainfully rejected Roberts’ arguments, writing that:

It is also obvious that petitioners' conduct was motivated "at least in part" by the invidious belief that individual women are not capable of deciding whether to terminate a pregnancy, or that they should not be allowed to act on such a decision. Petitioners' blanket refusal to allow any women access to an abortion clinic overrides the individual class member's choice, no matter whether she is the victim of rape or incest, whether the abortion may be necessary to save her life, or even whether she is merely seeking advice or information about her options. Petitioners' conduct is designed to deny every woman the opportunity to exercise a constitutional right that only women possess. Petitioners' conspiracy, which combines massive defiance of the law with violent obstruction of the constitutional rights of their fellow citizens, represents a paradigm of the kind of conduct that the statute was intended to cover.

Judicial Philosophy

Concurring in a decision allowing President Bush to halt suits by Americans against Iraq as the country rebuilds, Roberts called for deference to the executive and for a literal reading of the relevant statute. (Acree v. Republic of Iraq, 2004)

In an article written as a law student, argued that the phrase "just compensation" in the Fifth Amendment, which limits the government in the taking of private property, should be "informed by changing norms of justice." This sounds like a nod to liberal constitutional theory, but Rogers' alternative interpretation was more protective of property interests than Supreme Court law at the time.

Lead counsel for Toyota Motor Manufacturing, Ky, Inc. v. Williams. The case involved a woman who was fired after asking Toyota for accommodations to do her job after being diagnosed with carpal tunnel syndrome. The court ruled that while this condition impaired her ability to work, it did not impair her ability to perform major life activities. Disability rights groups fear that this decision may erode the Americans with Disabilities Act.

In a June 2004 decision on the D.C. Circuit Court, Roberts went even further than his colleagues in supporting the Bush administration in a case that pitted the government against veterans of the first Gulf War. American soldiers captured and tortured by the Iraqi government during the first Gulf War sued the Iraqi government in U.S. court and won nearly $1 billion in damages at the district court level. But once Saddam was toppled in 2003, the Bush administration wanted to protect the new Iraqi government from liability and intervened to block the award. Roberts, alone among the circuit judges who ruled with the government, said the federal courts did not even have jurisdiction to consider the victims' claim. An appeal is before the Supreme Court.

Federalist Society

Although Roberts has repeatedly stated that he has not been a member of the Federalist Society, The Washington Post reported in an article published on July 25, 2005 that Roberts in fact had been a member and that his name is listed in the Federalist Society's 1997-98 directory as "as a member of the steering committee of the organization's Washington chapter."

Subsequent to this reporting, White House spokeswoman Dana Perino said Roberts "has no recollection of being a member of the Federalist Society, or its steering committee."

It is unclear how Roberts could be listed as a member of the steering committee of the Washington chapter of the Conservative law group without having any recollection of belonging to the organization.

Sources state that one can be a part of the Steering Committee without being an actual member of the society. This is likely how Roberts is affiliated with the society but regardless, as a steering member, one must exhibit idealogy to push the society in the proper direction.


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