Clues on how Roberts might act on high court
His record while at a federal appeals court, though sparse, shows a resistance to limits on presidential power.
In his two years as a member of the federal appeals court in Washington, D.C., Judge John Roberts has helped decide more than 120 cases.
Not one of them examined abortion rights, affirmative action, or the separation of church and state. Rather than hot-button social issues, many of his cases involved litigation over complex regulatory matters and suits against some arm of the government. Most never made it into the headlines.
Still, with his nomination to replace retiring Justice Sandra Day O'Connor on the US Supreme Court, Judge Roberts's appeals-court work is suddenly under heavy scrutiny for any clues about how he might behave should he win a lifetime appointment to the nation's highest court.
The record that is emerging, though surprisingly sparse, does offer some insight into what makes Roberts tick as a judge, legal analysts say.
Many conservatives are not concerned with the lack of a long judicial record. "I take comfort in the fact that he is very bright and that he seems to understand the role of a judge, and I think lots of good things ought to flow from that," says M. Edward Whelan, president of the Ethics and Public Policy Center in Washington.
Liberals are worried that the lack of an extensive judicial record means a lack of ammunition for the campaign being mounted to defeat the Roberts nomination. Efforts are under way to reach even further back into his service in the Reagan and the first Bush administrations for documents that might help flesh out his thoughts on contentious issues.
Among cases drawing considerable interest are those in which Roberts:
• Upheld the president's authority to conduct terrorism tribunals at the Guantanamo Bay Naval Base in Cuba.
• Raised questions in a dissent about whether the commerce clause authorizes enforcement of the Endangered Species Act in certain cases.
• Upheld the arrest of a 12-year-old girl apprehended for eating a single French fry in a subway station.
"The one thing that seems pretty clear is that he is very strong on resisting any limits on presidential power," says William Marshall, a constitutional law professor at the University of North Carolina School of Law at Chapel Hill.
Last week, a three-judge panel, including Roberts, delivered the legal equivalent of a home run to the Bush administration in upholding its use of military commissions to try individuals designated as enemy combatants who are being held at Guantánamo.
A federal judge in Washington had earlier ruled that the president did not have the power to conduct such commissions and that the Bush administration was violating terms of the Geneva Accords. The appeals court panel - including Roberts - disagreed.
The scope of presidential authority to wage the war on terror is expected to become a major issue before the Supreme Court in the months and years ahead.
One Roberts case receiving particularly close attention involves a 2003 challenge to the federal Endangered Species Act. At issue was whether the act could be invoked to protect a certain species of toad that exists entirely in California and was being threatened by a development project. The appeals court ruled that under Congress's commerce-clause powers, the Endangered Species Act extends protection to the toad.
Parties in the case asked the full appeals court to reconsider. All but two judges declined to take up the case.
Roberts was one of the two.
In his dissent, he said the full court should agree to hear the case to more faithfully apply two Supreme Court precedents establishing limits on Congress's commerce-clause powers. He noted that the Fifth US Circuit Court of Appeals had recently adopted a similar, more restrictive, reading of commerce-clause authority and the Endangered Species Act.
"The panel's 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 wrote.
Legal analysts say Roberts's dissent is likely to spark sharp questioning during his confirmation hearing about his thoughts on judicial limits on federal and congressional power. He will also draw inquiries about his commitment to environmental protection by the national government, they say.
Alliance for Justice, a liberal advocacy group, says in a report that Roberts's dissent in the toad case raises a red flag. "The effect of Judge Roberts' views on Congress' commerce clause authority might threaten to undermine a wide swath of federal protections, including many environmental, civil rights, workplace and criminal laws," the report says.
The Roberts dissent was written in 2003. Last month, the Supreme Court limited its earlier commerce-clause rulings in a case that authorized federal policing of the intrastate possession and use of marijuana for medical purposes. Roberts, of course, did not have the benefit of that decision at the time he wrote his earlier dissent.
In the much-discussed French fry case, a 12-year-old girl was arrested for eating a French fry in a Washington, D.C., subway station. Rather than questioning the wisdom of the city's harsh policy, Roberts said the role of judges was to apply the law. He upheld the arrest and said it was up to elected city officials to decide the wisdom of the policy that prompted the arrest.
Conservatives are praising the ruling as an example of the proper limited role of judges. Liberals say the case raises questions about fair treatment of juveniles by the government - issues that they say were glossed over by Roberts.
How Roberts might rule on abortion is at the top of the list of concerns being expressed by liberal advocacy groups. But he has had no known professional involvement with the issue since his confirmation hearings to the appeals court in 2003.
At that time, he was repeatedly asked by senators whether he believed the abortion precedent Roe v. Wade should be overruled. He dodged the question.
He said that Roe was binding legal precedent and that as an appeals-court judge he would be bound to follow it. He added, "Nothing in my personal views would prevent me from doing so."
Now, as a prospective Supreme Court justice, Roberts could have the power to overturn Roe - as well as to rule in other abortion-related cases. Still, there is nothing in his appeals-court experience that suggests how he might approach the issue.