Clues on how Roberts might act on high court

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.

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