Reading Roberts's Mind

...Contending that the congressional delegation of authority was broad enough to encompass the secretary’s action, Roberts chided the majority for applying “the very antithesis of deferential review...

...The answers might tell us more about the man likely to be our newest justice...

...At the same time, I’ve represented defendants charged with antitrust cases...

...It is sometimes dashed with humor, as witness the judge’s reflection on that hapless toad...

...Arguing for a narrower and “effectively conceded basis” for disposing of the case, he invoked “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more...

...That helps explain conservative misgivings about Roberts...

...I’ve argued in favor of antitrust enforcement...

...In that capacity, of course, he remained an appellate lawyer, his client now the government, as he briefed and argued cases in the Supreme Court...

...Now that Roberts has been tapped for the High Court, Schumer remains insistent that he declare his “opinions about particular decisions...

...The effort failed...

...He also wrote three concurrences and two dissents...

...But she declined to offer an opinion about Planned Parenthood v. Casey, which sustained “the essential holding” of Roe...

...Justices, by contrast, make the precedents governing the courts below by interpreting statutes and the Constitution...

...One reason presidents look to the federal appeals courts for justices is that the judges on those courts are not representing others but indeed making their own decisions, which constitute the best evidence of how the individuals might think about the law and might perform on the Supreme Court...

...Roberts told the committee that his practice “has not been ideological in any sense...

...As I write, three days after the announcement of the nomination, the media having pursued every detail about Roberts, it appears that he has nowhere—either in print or a speech, on the air, or in cyberspace, for that matter—offered any “opinions about particular decisions...

...Roberts wrote the majority opinion in about 40 cases, drawing very few dissents...

...In Roberts’s defense, it might be said that he is surely not oblivious to the pitched ideological battles of the past two decades, having lived in Washington all of that time—he knows what is at stake in the courts...

...Those important qualities are ensured by the assumption that “judges come to the cases before them unencumbered by prior commitments beyond the commitment to apply the rule of law and the oath that they take...

...Appointed two years ago to the U.S...

...As deputy solicitor general, he helped prepare the government’s briefs in Rust v. Sullivan, Lee v. Weisman, and United States v. Eichman, among other high-profile cases...

...What is his approach to judging—to interpreting and applying the Constitution and other federal law...

...In a case holding that the Drug Enforcement Administration had wrongly blocked the importation of ephedrine, which is used to treat asthma, Roberts, in a concurrence, took issue with the majority’s reasoning...

...In Rust, the Court agreed with the government’s position that regulations prohibiting familyplanning services in receipt of federal funds from advising on abortion were not a violation of the free speech clause...

...Of the 200 decisions, almost all were unanimous, according to a review by Anisha Dasgupta and Brian Fletcher (posted at www.sctnomination.com/blog...

...Roberts’s own writing is restrained, for it is marked by its lawyerly precision and its avoidance of grandiose or strident pronouncements...

...I’ve argued in favor of affirmative action...

...It might, or it might not...

...For while it is surely true that Roberts, a political appointee, was at least in broad sympathy with the legal and policy goals of the Bush administration, it would be wrong to infer—to take the most notable case—that the statement about Roe in the Rust brief reflected his own view of Roe...

...He said he didn’t feel comfortable with labels like originalist, textualist, or literalist, and he said different constitutional provisions call for different interpretative approaches...

...Roberts is nowhere on the record on Roe, so far as anyone can determine...

...Court of Appeals for the D.C...

...Likewise it is hard to imagine Roberts abiding the religion-clause chaos to which O’Connor made major contributions...

...Roberts’s conception of judicial restraint also encompasses a preference for a narrower ground of decision unless a broader one is truly necessary...

...That is a fair point, and extends even to his time in the solicitor general’s office...

...I have opinions about particular decisions,” Roberts told Schumer in one exchange...

...He has definitely had his share of big, controversial cases, especially when he worked in the first Bush administration...

...To say that time will tell is, of course, a clich...

...In Lee, the government argued, unsuccessfully, that prayers at a public school graduation ceremony were not an unconstitutional establishment of religion...

...Roberts, it bears noting, was in the first batch of judges Bush nominated in 2001, his nomination not moved until after the Republicans captured the Senate in 2002...

...When Schumer asked how it was any different—was there not also harm done to the judiciary?—when litigants go before the Supreme Court knowing that some justices have opined in previous cases in such a way as to indicate opposition to their arguments, Roberts said that it was different, precisely because the confirmation process is not the judicial process...

...Circuit...

...There was more risk in choosing Roberts than in picking some others on that list, notably J. Michael Luttig, a federal appellate judge of roughly the same age but with many more years of service than Roberts...

...In 1989, Roberts returned to the Justice Department, where he worked as principal deputy solicitor general under Kenneth Starr...

...likely he would, like his former boss Rehnquist, strive for doctrinal clarity...

...His brainpower, legal experience, and character duly recognized, what is his judicial philosophy...

...Probably every decision I read, I have an opinion whether I think it is good, bad, or...

...During his confirmation hearing two years ago, Roberts said that no one should infer from the views of his clients what his own views might be...

...My clients and their positions are liberal and conservative across the board...

...Another place to look for clues about Roberts’s judicial philosophy is in the work he’s done as an appellate lawyer...

...During the hearing, Roberts laid out his reasons for what might be called nominee restraint...

...At the same time, Roberts defers to agency judgments so long as there is sufficient congressional authorization...

...Nor would such questions threaten judicial independence and integrity...

...Perhaps his case of most national significance is Hamdan v. Rumsfeld, in which he and two other judges voted to affirm the validity of military commissions under the 2001 congressional resolution authorizing the president to “use all necessary and appropriate force” against al Qaeda, and to uphold the president’s judgment that the Geneva Convention does not apply to members of al Qaeda...

...While the skill of setting aside personal views and enforcing the law lies at the heart of sound judging, there is much more to it than that, especially for a Supreme Court justice...

...Lower court judges work with the precedents of their own circuits, and of course they are bound by the decisions of the Supreme Court...

...Roberts dissented from his court’s refusal to rehear a panel decision on the scope of the commerce clause...

...Regarding the majority’s rationale, he said, “I cannot go along for that gratuitous ride...

...In choosing this nominee, Bush necessarily chose to pass over the others on his short list...

...That would be a positive development...

...Roberts faulted the panel’s decision for failing to ask—as he said it should have under recent Supreme Court precedents—whether the movement of a toad, a seemingly noncommercial activity that occurs entirely within the state of California—can be said to be interstate commerce...

...That’s not going to happen...

...Doubtless, as the confirmation process unfolds, Roberts will be asked to expand upon his varied approaches to constitutional interpretation...

...If a nominee gave in effect “a prior commitment” as to how a case should be decided, that would be wrong, Roberts said, and it would “have a distorted effect on how that judge will appear to parties appearing before him...

...But he also seemed to endorse a way of approaching the task of interpreting the Constitution...

...You have a very different approach in saying how you are going to give content to the Fourth Amendment prohibition on unreasonable searches and seizures...

...I have argued in favor of environmental restrictions and against takings claims...

...Roberts has participated in cases involving a wide range of subjects: administrative law, admiralty, antitrust, arbitration, banking, bankruptcy, civil rights, constitutional law, the environment, federal jurisdiction and procedure, the First Amendment, health care, Indians, interstate commerce, labor, and patent and trade law...

...And, being a lawyer’s lawyer, he could help the Court become more rigorous in its reasoning...

...Earlier, in 1992, the first President Bush had tapped Roberts for the D.C...

...Most of his cases involved technical questions of administrative law and proved relatively noncontroversial...

...And the circumstances under which he might be willing to overrule a case he thought wrongly decided...

...The sample size from the D.C...

...It doesn’t mean that you apply the same approach to a far more specific provision like the Seventh Amendment,” which preserves the right of trial by jury in suits at common law...

...Roberts’s years as an appellate lawyer seem useful mainly for understanding his considerable professionalism—and not for discerning how he might interpret and apply the Constitution...

...He said that the Court itself didn’t have such a philosophy, but he also seemed to think that the Court was right not to have one...

...The panel’s Terry Eastland is publisher of THEWEEKLY STANDARD...

...In short, John G. Roberts may prove an excellent choice...

...And in Eichman, the government argued, also unsuccessfully, that a federal law against burning the American flag did not violate the free speech clause...

...At issue was a judgment upholding an order of the Fish and Wildlife Service as a constitutional regulation of interstate commerce...

...Whether he agrees or not with the Supreme Court’s federalism precedents—and his opinion in the arroyo toad case does seem sympathetic to them— he is certainly willing to apply them, as a lower-court judge must...

...A nominee who offered personal views of the Court’s precedents in the confirmation process would undermine the independence and integrity of the judiciary, he said...

...I do not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document,” he said...

...I’ve argued in favor of prisoners’ rights under the Eighth Amendment...

...What kind of jurist will he turn out to be—20, 30 years hence...

...The brief also reminded the Court that the government remained of the view that the abortion right announced in Roe v. Wade had no basis in the text, structure, or history of the Constitution...

...In his confirmation hearing, Roberts did offer some views, not about decided cases, but about judicial philosophy...

...It’s hard to see Roberts writing a weak-as-water opinion of the sort O’Connor penned for the Court two years ago in sustaining admissions preferences at the Michigan Law School...

...He has yet to sit on a big social-issue case—one involving, say, abortion, same-sex marriage, or establishment of religion...

...And about statutory interpretation, specifically whether he would consult legislative history in determining the meaning of a statute...

...The concern is that you are giving commitments, forecasts, hints, even at the extreme, bargains, for confirmation,” whereas, in the judicial process, “you are deciding a particular case and stating your reasons for it...

...His appellate practice is not a very good place to look for clues about his judicial philosophy...

...Roberts wrote for a unanimous panel upholding a lower court judgment that the arrest, search, handcuffing, and detention of a 12-year-old girl for eating a single French fry in a Washington Metrorail station did not transgress the Fourth and Fifth Amendments...

...At which point the eager and voluble Schumer interrupted, apparently unaware that Roberts had effectively stated that his mind is locked in, rendering judgment, whenever he reads a judicial decision...

...Circuit, but the Democratic Senate had not been inclined to act on the nomination as Election Day approached...

...And about how he would read the Court’s precedents— narrowly or broadly...

...Circuit, Roberts has participated in some 200 decisions and 100 orders...

...Ginsburg had criticized Roe’s rationale in a law review article, and thus felt compelled to reiterate, when asked about the article during her hearing, what she had said...

...Some of Roberts’s writing is notable...

...Roberts conceded that “that’s not judging . . . but it is the same skill, setting aside personal views, taking the precedents and applying them either as an advocate or as a judge...

...At the same time, it is easy to imagine Roberts—who has advised an attorney general and a president, and argued the executive’s position in the Supreme Court—being especially aware of the importance of the executive power, at a time when terrorists still threaten America and the world...

...Roberts dissented from a decision holding that the secretary of labor went beyond her statutory authority by issuing certain reporting obligations for labor organizations...

...There he began to establish a reputation as one of the nation’s finest appellate lawyers...

...approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce . . . among the several States.’” Roberts also noted that the panel’s decision was in conflict with another ruling in the circuit, making it doubly necessary for the full court to take up the case...

...These are seldom expressed publicly—with Ann Coulter the loud exception...

...That’s one thing...

...Circuit is small, yet it points in certain directions...

...The question before us,” he wrote, “is not whether these policies were a bad idea but whether they violated” the Constitution, and “we conclude they did not...

...Roberts seems to have a proper understanding of the executive power that Article II vests in the president...

...I’ve argued cases against affirmative action...

...After Harvard (he graduated in three years), Harvard Law (he was editor of the Law Review), clerkships first with federal circuit judge Henry Friendly and then with Associate Justice William Rehnquist, and jobs advising Reagan’s first attorney general and then Reagan and his White House aides, Roberts took a job at a prestigious Washington law firm...

...Which brings us to another way to discover Roberts’s views on such matters: by asking him directly about cases already decided...

...The extra risk associated with the Roberts choice might not matter much if another vacancy occurs in the next year or two and the president chooses Luttig or someone like him...

...One place to look for the answer is in Roberts’s record as a federal circuit judge...

...In 1993 he returned to private practice, leaving two years ago when the Senate finally, and by unanimous consent, approved his nomination to the D.C...

...His respect for the separation of powers is such that he is unwilling as a judge to condemn as unconstitutional merely bad ideas embraced by one of the other branches...

...Moreover, they can overrule their own decisions...

...Luttig would have come with less risk simply because, tested for so much longer, his record is more emphatically that of someone who practices the approach to judging Bush says he wants in his Supreme Court nominees...

...Roberts implored the committee to look “at cases on both sides” of an issue and “see if the professional skills applied, the zealous advocacy is any different...

...The agency told a developer that it must remove a fence from its own property in order to accommodate the movement of arroyo toads...

...And it is hard to envision Roberts buying into such pretensions to supremacy as came from O’Connor, Souter, and Anthony Kennedy in their dismaying joint opinion in Planned Parenthood v. Casey...

...Roberts was firm in drawing this line, and Schumer concluded by conceding how good a lawyer he is—“far better than I would ever be...

...Because he was nominated to a lower court, he emphasized his obligation to follow Supreme Court precedents...

...Two years ago Judiciary Committee Democrats, with Charles Schumer taking the lead, tried to get Roberts to discuss Supreme Court cases...

...But with a nominee for the Supreme Court, it always does...

...It is hard to imagine what might compel Roberts to change course and discuss a decision—unless, as was the case with Ruth Bader Ginsburg in 1993, in a speech or article he has said something about a ruling...

...But foolish policies were not necessarily unconstitutional...

...Roberts began his opinion, “No one is very happy about the events that led to this litigation,” noting that the district court described the policies leading to her arrest as “foolish” and that indeed the policies were changed after “those responsible endured the sort of publicity reserved for adults who make young girls cry...

...But if it turns out that Bush has only this one opportunity, then the question of the choice not made could come back to haunt him—just as the choice of David Souter, in 1990, has his father...