What does John Roberts believe?

Bush's selection looks like a political masterstroke. But if Judge Roberts proves to be an ideologue in the Scalia/Thomas mold, he and the president may run into a Democratic buzz saw.

Published July 21, 2005 4:03AM (EDT)

President Bush's selection of Judge John Roberts to replace retiring Justice Sandra Day O'Connor on the U.S. Supreme Court at first blush seems like a political masterstroke. The president has chosen an extraordinarily accomplished lawyer, one who has worked with, and is well-liked by, lawyers of both parties and who has a moderate, judicious demeanor. His background and training are of the highest caliber: He is a graduate of Harvard College and the Harvard Law School, and he has had a distinguished legal career both inside and outside the government.

But closer examination suggests that the president may be playing by yesterday's rules, in which mere qualification and demeanor might have been sufficient. President Bush has made ideology a critical basis for selection of his judicial nominees, and Democrats in the Senate have responded in kind. Sen. Charles Schumer of New York, in particular, has argued in the context of lower-court nominations that the Senate need not and ought not to confirm judges who refuse to divulge their own views about the meaning of the Constitution. And already he and Sen. Dick Durbin, D-Ill., who, like Schumer, sits on the Judiciary Committee, have said that they have an obligation to find out what Judge Roberts thinks about the most important constitutional questions, including the scope of the constitutional right to privacy, which the Supreme Court has held protects a woman's right to choose abortion but which justices like Antonin Scalia and Clarence Thomas reject.

The importance of such questions in this case almost couldn't be greater. For if Roberts turns out to be what the president has promised to appoint (and what many people on both ends of the ideological spectrum seem to suspect), a conservative with substantive views in the mold of Justices Scalia and Thomas, his appointment would be a seismic event in American law and the life of our country. Replacing O'Connor with that kind of extreme conservative would likely mean, among other things,

  • the end of affirmative action in higher education in the United States (which was held constitutionally permissible by a 5-4 vote in O'Connor's 2003 opinion in Grutter v. Bollinger);
  • a lowering of the wall of separation between church and state -- something that has served both religion and government so well in this nation -- so that a government's public display of religious symbols, even with a primarily religious purpose, would be permitted (O'Connor's was the fifth vote just last month in McReary County v. ACLU, which invalidated, 5-4, the posting of the Ten Commandments in a Kentucky courthouse);
  • and, at the very least, the upholding of many, many more restrictions on women's right to abortion (O'Connor cast the fifth vote for the majority in the Court's most recent abortion case, Stenberg v. Carhart, invalidating by a 5-4 vote a law that would have prohibited one method of performing abortions and that contained no exception to protect the health of the pregnant woman).
  • What we may already be seeing, and what the weeks to come will test, is whether President Bush has miscalculated the nature of this confirmation process. The Democrats in the Senate have stood together with respect to judicial nominations in a way that has shown surprising backbone, refusing to confirm Bush's most extreme lower-court nominees. May's filibuster deal was an enormous win for the Democrats -- even at the price of confirming to the appeals courts some judges they thought were anathema -- because it means that the filibuster remains in place. The Republican leadership can hardly try to eliminate it in the midst of the Roberts nomination without being accused of trying to change the rules in the middle of the game. Forty Democrats thus could prevent Roberts' confirmation.

    So that leaves two important questions: Will the Democrats insist that Roberts be forthcoming about his personal views on important constitutional questions? And how will Roberts respond if they do?

    Robert Bork was defeated for confirmation to the Supreme Court in 1987 largely because of the extreme conservative views he expressed, views that senators considered outside the mainstream of American legal thought. This has led to the nomination by conservative Republican presidents of so-called stealth nominees, individuals -- like Roberts -- with fairly thin paper trails. But given all that is at stake -- and the Democrats' long preparation for this moment of O'Connor's retirement -- that may not be good enough this time. And Roberts may find himself having to be more forthcoming at his confirmation hearing than he would like.

    If Roberts is as conservative as some believe, that could put him between a rock and a hard place. And while the next few days will see deeply detailed analyses of all his writings, there is at least one tea leaf among his judicial opinions that suggests that he may hold such deeply conservative views.

    Last year, in Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts wrote an opinion upholding the arrest of a 12-year-old girl for eating a single French fry in a Washington, D.C., Metrorail station while on her way home from junior high school. As the court described, the "girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later." Except for the time she was being fingerprinted, the girl remained handcuffed with her hands behind her back until she was released.

    Roberts concluded that the arrest and detention under a mandatory arrest policy for minors was not an "unreasonable" seizure under the Fourth Amendment to the Constitution, even though adults found to have violated the same no-eating-in-the-Metro ordinance were simply given citations. For obvious reasons, this decision is likely to be a point of some contention in Roberts' confirmation hearing. But of more significance than the decision itself is a part of its reasoning.

    Roberts wrote that the Metro's mandatory arrest policy was not unconstitutional in part because it would not have been "regarded as an unlawful search or seizure under the common law when the Amendment was framed," that is, under the law as it stood in 1791. He described this inquiry as "the usual first step" in assessing Fourth Amendment cases, but really it is not. Instead, it is part of an approach to the law put forward by Justice Scalia, one that has been used inconsistently at best by the Supreme Court, garnering a clear majority's support in only one Fourth Amendment decision. It is an approach that would in essence freeze our rights as they were in 1791. And it is contrary to a great deal of modern Supreme Court case law that is dear to most Americans -- from protection against wiretapping to protection of the right to choose.

    Why Roberts chose this approach and whether he indeed supports this narrow type of history-based constitutional interpretation of course remains to be seen. But what his approach is to interpreting the Constitution may well turn out to be the critical question in his confirmation hearings -- not whether he is adequately accomplished. This is largely because of the way in which President Bush has gone about choosing all his previous judicial nominees. And it means the ball is firmly in the Democrats' court.

    By Peter Rubin

    Peter Rubin is professor of law at Georgetown University, where he teaches constitutional law.

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