July 25, 2005,
Now that the country has had a few days to meet John Roberts, the president’s pick to succeed Justice Sandra Day O’Connor on the United States Supreme Court, attention is turning to his substantial body of writing to see what kind of Supreme Court justice he will be.
The first place that Roberts’s opponents have looked is a dry well. Opponents of the nominee have attacked him on the basis of legal briefs that he has written for the government while a deputy solicitor general at the Department of Justice and for private clients while a partner at the Washington, D.C. law firm of Hogan and Hartson. For example, abortion-rights groups cite as evidence of Roberts’s hostility toward “reproductive freedom” (their words, not mine) a 1991 government brief filed in Rust v. Sullivan. Rust was a case in which the United States defended regulations denying federal funding for abortion-related medical services. Abortion advocates argue that Roberts is obviously opposed to abortion rights because the government’s Rust brief called for Roe v. Wade to be overturned. Whatever Roberts’s personal views on the constitutional right to an abortion, this brief is hardly evidence of them. The government’s opposition to abortion was stated in precisely two sentences, which readopted arguments previously made by the Reagan and Bush administrations and said nothing more. The brief was not the earth-shattering attack on Roe that NARAL and company have been claiming, but instead, little more than a passing mention, just in case the Court was interested in revisiting the issue. In any event, Roberts, like the other lawyers on the brief, was simply representing his client, the Bush administration, so it tells next to nothing about his personal views.
So if Roberts’s legal views are not apparent from his legal advocacy as a government and private lawyer, can we get a better picture of his legal philosophy from his first couple of years as a judge? Though he has heard only a limited number of cases, the answer to that question is a resounding “yes.” From a review of just a handful of John Roberts’s written opinions, a picture emerges of a restrained jurist, highly respectful of the political branches of government, empathetic yet unwilling to allow sentiment to color his view of the letter of the law, and with a gentle but never inappropriate sense of humor. This pattern is most prominent in a trio of cases: Hedgepeth v. Washington Metropolitan Area Transit Authority, Acree v. Snow, and United States v. Jackson.
The Law's the ThingIn Hedgepeth, one of the most overanalyzed decisions in the wake of John Roberts’s nomination, a 12-year-old girl sued for being handcuffed and led away by D.C. Metropolitan Transit Authority police for eating a French fry in violation of a local zero-tolerance policy against eating on transit trains. Her case was thrown out by Judge Emmet Sullivan, a left-of-center Clinton-appointed district-court judge. In an opinion written by Judge Roberts, the D.C. Circuit upheld that decision, concluding that binding Supreme Court law allowed the arrest of the little girl because police witnessed her violating the law. Roberts had no qualms about the legality of the policy, even while he scoffed at the District’s zero-tolerance policy, writing:
No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in a windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until reasoned to her mother some three hours later all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed and crying throughout the ordeal.
Roberts noted that the District had changed its policies “after those responsible endured the sort of publicity reserved for adults who make young girls cry.” But, he reasoned, that the “question before us … is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendment to the Constitution.” Concluding that they did not, the court affirmed the dismissal of the case.
Roberts’s dissenting opinion in Jackson, a decision issued just last week, demonstrates a similar approach to the law. There, a majority of the court reversed a lower court’s decision to allow evidence of a handgun found in the trunk of a criminal defendant’s car to be used at his criminal trial, holding that the trunk search violated the Fourth Amendment. Roberts dissented. The majority ruled that it was not reasonable to search the trunk, even though the defendant was caught driving a car with stolen licenses plates and no registration. Among other reasons, the court concluded that the police had an obligation to investigate the defendant’s story that the car actually belonged to his girlfriend. In a passage revealing of both Roberts’s commonsense approach to the law and his dry humor, he disagreed, reasoning: "Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action." He also ribbed his colleagues on the court for a letting sentiment stand in the way of good judging: "I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment's place among our most prized freedoms. But sentiments do not decide cases; facts and the law do."
Not Just "Any" MeaningConcerns that Roberts might stray from the plain letter of the law are answered by his separate opinion in Acree, a case involving a group of American servicemen who attempted to sue Iraq for injuries sustained while taken prisoner in the first Gulf War. A lower-court judge granted a $600+ million judgment in favor of the veterans when Iraq failed to appear to defend. But before they could collect on the judgment, Congress enacted a post-Iraqi-war statute that authorized the president to set aside “any . . . provision of law that applies to countries that have supported terrorism.” Seeking to give the new Iraqi government a fresh start from the burdens of Saddam Hussein’s rule, President Bush used that authority to set aside a range of punitive federal laws targeted at Iraq, including the law that allowed the Acree plaintiffs to get into federal court to sue a foreign state for acts of terrorism. A majority of the panel that heard the case concluded that “any provision of law” did not actually include this jurisdictional provision because “any provision of law,” in their reading, actually meant only “provisions of law that call for economic sanctions and prohibit grants of assistance to state sponsors of terrorism.” So in the majority’s view, “any” did not mean “any,” but something substantially narrower.
In an opinion concurring in the dismissal of the case, Roberts strongly disagreed with the majority’s restrictive reading of the statute. Confronted with the majority’s reliance on rules of statutory construction to vary the plain meaning of the law, Roberts’s responded:
In such circumstances, I prefer to rest on the firmer foundation of the statutory language itself. Give me English words over Latin maxims... The majority ably marshals the arguments on the other side, but at the end of the day I find greater solace in the words themselves.
We can all take solace in a judge who respects the law as written. Roberts’s approach to these tough decisions should give comfort to those who wanted the president to keep his electoral promise to appoint judges who interpret the law, not rewrite it.
Shannen W. Coffin is a partner in the Washington, D.C. law firm of Steptoe & Johnson. A former Department of Justice official, Coffin now practices constitutional and appellate litigation.