Now, it's the Roberts court
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Roberts's arrival at the high court may prove historic for another reason. Rising to chief justice at the relatively tender age of 50, he could occupy the Supreme Court's center chair for 30 years or more. That would place him in the company of a legal giant, John Marshall, who served as chief for 34 years in the high court's formative period in the early 1800s.Skip to next paragraph
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While Roberts declined during his confirmation hearing to offer forecasts of how he might vote in particular cases, he did reveal some new information. He announced that he objects to American judges relying on foreign law as precedent in American courts. This places him on the conservative side of an ongoing debate among the justices. Roberts says such reliance on foreign precedent would undermine the legitimacy of the courts and allow US judges to vastly increase their discretion to engage in results-oriented judging.
"If a court relies on a decision of a foreign judge ... no president accountable to the people appointed that judge, no Senate accountable to the people confirmed that judge, and yet that judge is playing a role in shaping a law that binds the people of this country," he wrote in response to Sen. Edward Kennedy (D) of Massachusetts.
On Second Amendment gun rights, a potentially explosive issue, Roberts predicted that because of a sharp split among the appeals courts "it is likely that this question will reach the Supreme Court soon." The comment is significant because the high court has avoided taking up the gun-rights issue since the 1930s, but Roberts appears ready to confront it.
Another potential hot-button issue is court-stripping. During his confirmation hearing, Roberts backed away from an earlier position he took as a young lawyer in the Reagan administration supporting a theory that the Constitution permits Congress to strip the federal courts of jurisdiction in controversial cases. Roberts now says that any effort to limit the jurisdiction of the courts would raise "very grave constitutional issues."
Another Roberts revelation during the hearing was his frequently repeated recognition of a privacy right contained within the due process clause of the Fifth and Fourteenth Amendments. While some observers might take the admission as code that he would uphold abortion and gay-rights rulings, legal analysts say Roberts has not provided enough information to forecast how these views might translate in a specific decision.
"Overturning Roe tomorrow would be completely consistent," says Michael Carvin, a Supreme Court advocate who served in the Reagan Justice Department at the same time as Roberts. But he adds that it is unclear if Roberts will vote that way.
Mr. Carvin says the key to understanding Roberts is to focus on his approach to the rule of law and judicial modesty. "With people like Roberts, their personal leanings and views on policy issues are irrelevant," he says. "If they are bright and they follow the rule of law, they are going to come to conclusions that commentators are going to characterize as conservative in the vast majority of cases."
Professor Gillman has a different perspective. "In the modern history of the Supreme Court ideological labels always apply. They make the justices uncomfortable but it is incontrovertible that the justices are heavily influenced by their political ideology," he says.
"Roberts's votes on the court will reflect his lifelong commitment to the promotion of conservative values and principles," Gillman says. "That's why Bush picked him."
With the court's 2005-2006 term set to begin next Monday, legal scholars are awaiting the first Roberts opinions - perhaps as early as November. Until then many analysts on both the left and the right are nervously contemplating the enormous impact this self-described humble umpire will have on the future course of American history.