For other reasons as well, Judge Roberts will not be an easy target for the left or for the right. There is no extensive paper record of his personal views. Having sat as a judge on the U.S. Court of Appeals for the District of Columbia Circuit for only two years, he has written few decisions that can be scrutinized for evidence of his future positions on highly charged issues such as abortion and affirmative action. And unlike Robert Bork--a failed Supreme Court nominee during the Reagan administration--Judge Roberts has been free of the academic's inclination to detail his legal philosophy in articles and speeches.
As a government lawyer, Judge Roberts wrote briefs in some controversial cases. For example, as Deputy Solicitor General, he co-authored a brief in Rust v. Sullivan for the first Bush administration, which argued that the government could prohibit doctors in federally funded abortion programs from discussing abortion with patients. Some will say this is evidence that Roberts will vote to overrule Roe v. Wade, the 1973 decision recognizing the woman's right to seek an abortion early in her pregnancy. His supporters will counter that he was merely representing a client. Most senators, many of whom are lawyers themselves, will be hesitant to say that a lawyer necessarily must be held to account for the views of his clients.
Judge Roberts is indeed a political conservative, and he is likely to be a more reliable member of the conservative wing of the court than Justice O'Connor proved to be. But predictions about Supreme Court justices are risky. President Theodore Roosevelt lamented his selection of Justice Oliver Wendell Holmes who, soon after joining the high court, voted against the Roosevelt administration in an important antitrust ruling. President Eisenhower, too, regretted his decisions to place Earl Warren and William Brennan on the Supreme Court; each ultimately shed his conservative views to become a leading proponent of a liberal jurisprudence. Closer to home, if we could consult the views of President Reagan, we would be hearing second thoughts about his O'Connor pick.
While we can't predict the particulars, there is no doubt that change in the court's jurisprudence will come. Justice O'Connor, while instinctively a conservative, was a judicial maverick in many areas. In many cases, O'Connor provided a critical fifth vote joining the liberal "gang of four" (Justices John Paul Stevens, David Souter, Ruth Ginsburg and Steve Breyer). Roberts, by contrast, is more likely to join the conservative "gang of three" (Chief Justice Rehnquist or his replacement, and Justices Antonin Scalia and Clarence Thomas).
Where are the differences likely to be felt? Consider four areas of controversy:
Roberts is not likely to vote to overrule Roe v. Wade itself. The precedent is at this point well-established, even if still criticized in conservative and some academic circles. But in keeping with his general conservative stance, which would favor allowing a greater parental role, he may well vote to support parental notification laws even when those statutes do not contain the procedural safeguards abortion providers and advocates insist upon.
Read more >>
The essential rule of separation of church and state will continue, whoever is on the court. Change is likely to occur at the margin: To what extent may states accommodate religion by exempting religious groups from generally applicable laws, and to what extent may they give expression to religious values in public spaces? In two cases this year involving public display of the Ten Commandments-one from Kentucky and the other from Texas, the court upheld the Texas outdoor public display in part because it had been in place for 40 years and had not engendered public controversy, but struck down the indoor Kentucky display because the government officials had made their religious intentions clear when they erected earlier versions of the displays. Justice O'Connor voted with the majority in the Kentucky case, and with the dissenters in the Texas case. A Justice Roberts is likely to look more favorably on permitting limited references to religion in the public square, as consistent with the nation's history and values.
Justice O'Connor led the court's jurisprudence here, insisting that all use of race, even if benefiting racial minorities, had to be subjected to a high level of judicial scrutiny. She either supplied the fifth vote or wrote the majority opinion in cases striking down use of racial preferences in deciding layoffs of employees, allocating city contracts, or awarding broadcasting frequencies. However, when it came to the University of Michigan's use of race in its admissions decisions, Justice O'Connor opted for a more permissive approach. Her opinions in Grutter v. Bollinger and Gratz v. Bollinger, two cases challenging the University of Michigan's affirmative action policies, strike down the undergraduate school's rigid formulaic use of race in admissions decisions, while upholding the law's school's reliance on race as a flexible guidepost to recruiting a "critical mass" of minority students. Again, it is doubtful the court will overrule these decisions, but as new controversies arise-not controlled by prior precedent--Roberts may well be closer to Rehnquist, Scalia, and Thomas, who dissented in the Grutter decision. This would be in line with strongly held conservative views that the use of race to allocate economic or educational opportunities violates the Constitution's equal protection clause.
In Hamdi v. Rumsfeld last year, Justice O'Connor authored the court's plurality opinion, insisting the government's detention of Yaser Esam Hamdi, a U.S. citizen, on U.S. soil as an "enemy combatant" required a due-process hearing to justify continued detention. In a related case, Rasul v. Bush, O'Connor joined Justice Stevens' opinion for the court holding that federal courts had jurisdiction to review the legality of the detention of non-citizens held at the U.S. facility at Guantanamo Bay. Both decisions were setbacks for the Bush administration. Given his background in government service, and his vote in support of similar issues while on the appeals court, Justice Roberts is likely to be more supportive of executive power.
In short, a Roberts appointment suggests that the Supreme Court may take a shift to the right, toward according government decisions greater deference in these hotly contested areas. It does not auger, however, a seismic shift in jurisprudence.