John Roberts

This article is about the judge and U.S. Supreme Court nominee. For the article on his upcoming confirmation hearings see John Roberts Supreme Court nomination and hearings. For other uses, see John Roberts (disambiguation).

File:John G. roberts.jpg

Hon. John G. Roberts, Jr.

John Glover Roberts, Jr. (born January 27, 1955) is an American attorney and jurist. Since 2003 he has been a judge on the United States Court of Appeals for the District of Columbia Circuit. Roberts previously spent fourteen years in private law practice and held positions in Republican Administrations in the U.S. Department of Justice and Office of the White House Counsel.

On July 19, 2005, Roberts was nominated by President George W. Bush to fill the vacancy on the U.S. Supreme Court left by the retirement of Associate Justice Sandra Day O'Connor.

Early life and education

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1976 Harvard University yearbook photo of Roberts.

Roberts was born in Buffalo, New York, has three sisters—Kathy, Peggy, and Barbara—and is the second oldest child. His father, Jack Roberts, Sr., was an executive at the Bethlehem Steel Corporation, having worked there since 1951. He worked at the Bethlehem, Pennsylvania plant, and later, at the Sparrows Point, Maryland plant. He was highly regarded and considered an intellectual, implementing Japanese-style management.[1] In 1960, Roberts's family moved to Long Beach, Indiana, a small Chicago suburb on the shores of Lake Michigan, when Roberts was in second grade.

In 1973, Roberts graduated first in a class of 23 from La Lumiere, a small, and at the time, all-male Catholic boarding school near LaPorte, Indiana. He studied six years of Latin and some French. He was co-captain of the football team and described himself as a "slow-footed linebacker." He also wrestled, was co-editor of the student newspaper, and served on the athletic council for athletics and the Executive Committee of the Student Council. He also took part in choir and drama.

He spent three years at Harvard College, having entered as a sophomore, graduating in 1976 summa cum laude, with a Bachelor of Arts degree. In 1979, he received his law degree magna cum laude from Harvard Law School (where he was managing editor of the Harvard Law Review).

Career

After graduation, Roberts became a law clerk for Henry Friendly on the Second Circuit Court of Appeals, and held this post until the following year. From 1980 to 1981, he was a law clerk to then-Associate Justice William Rehnquist on the Supreme Court.

From 1981 to 1982, Roberts was a Special Assistant to U.S. Attorney General William French Smith under President Ronald Reagan at the U.S. Department of Justice. In 1982, Roberts became the Associate Counsel to the President under Fred Fielding, and held this post until 1986.

Roberts entered private practice in 1986 as an associate at the Washington, D.C.-based Hogan & Hartson law firm but left to serve under President George H.W. Bush in the Department of Justice from 1989 to 1993 as Deputy Solicitor General. In this capacity, he argued 39 cases for the government before the Supreme Court, winning 25. He represented 19 states in United States v. Microsoft.

In 1992, George H.W. Bush nominated Roberts to the U.S. Court of Appeals for the District of Columbia Circuit, but no Senate vote was held, and Bush left office after losing the 1992 presidential election. Roberts returned to Hogan & Hartson as a partner and became the head of the firm's appellate practice.

President George W. Bush looks on as Roberts delivers remarks on the State Floor of the White House, Tuesday evening, July 19, 2005.

George W. Bush nominated Roberts to the Circuit Court of Appeals for the District of Columbia on May 9, 2001, but the nomination —along with 29 others— failed to make it out of the Senate Judiciary Committee. He was renominated on January 7, 2003, to replace James L. Buckley. His nomination was approved by the Judiciary Committee by a vote of 16 to 3 with Senators Durbin, Schumer, and Kennedy opposing. He was approved by the Senate by unanimous consent and he received his commission on June 2, 2003.

At the time he left private practice to join the DC Circuit Court of Appeals, Roberts reported in a financial disclosure filing in 2005 that he earned a salary of $1,044,399, had many stocks (including pharmaceutical and technology investments, such as holdings in Pfizer and Procter & Gamble), and a one-eighth interest in a cottage in the village of Knocklong, in County Limerick, Ireland, valued at $15,000 or less.^[2]

On July 19, 2005, Bush nominated Roberts to replace Sandra Day O'Connor as an Associate Justice on the U.S. Supreme Court. Roberts became the first Supreme Court nominee since Stephen Breyer in 1994. Bush announced Roberts's nomination in a live, nationwide television broadcast beginning at 9:02 p.m. EDT in the East Room of the White House (though the choice had already been leaked and reported by the Associated Press at 7:44 p.m. EDT, 76 minutes before the official announcement). Roberts stood at Bush's side and made some short comments after the president's remarks were finished. The broadcast ended at 9:09 p.m.

See John Roberts Supreme Court nomination and hearings for details on the nomination and the confirmation hearings.

Personal life and memberships

Roberts is currently a member of the American Academy of Appellate Lawyers, the American Law Institute, the Edward Coke Appellate American Inn of Court, and the National Legal Center for the Public Interest.^[3] He serves on the Federal Appellate Rules Advisory Committee.

Roberts lives in Bethesda, Maryland. He married Jane Marie Sullivan in 1996. The Robertses adopted two infants from Ireland in 2000, Josephine ("Josie") and Jack. Jack's dancing during Bush's White House introduction of his father brought the four-year-old international media attention.

His wife, a lawyer with the firm of Pillsbury Winthrop Shaw Pitman LLP, was previously the vice-president of Feminists for Life, a feminist pro-life organization that opposes abortion and the death penalty. She was educated at College Of The Holy Cross (A.B., Magna Cum Laude, 1976), Melbourne University (Dip. Ed., 1977), Brown University (M.S., 1981), and Georgetown University Law Center (J.D., cum laude, 1984). [4] [5] Roberts and his wife are Catholics who attend the Little Flower Parish in Bethesda.

Confirmation Hearings and Views

See John Roberts Supreme Court nomination and hearings for details on the 2005 Supreme Court nomination and confirmation hearings. Please add any new material dealing with views and current analsys to that hearings article.

2003 Senate Confirmation Hearings

During Judiciary Committee hearings on his nomination to the circuit court, Roberts testified about his views on jurisprudence.[6]

The Commerce Clause

[S]tarting with McCulloch v. Maryland, Chief Justice Marshall gave a very broad and expansive reading to the powers of the Federal Government and explained that—and I don’t remember the exact quote—but if the ends be legitimate, then any means chosen to achieve them are within the power of the Federal Government, and cases interpreting that, throughout the years, have come down. Certainly, by the time Lopez was decided, many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren’t going to be thrown out that way. Lopez certainly breathed new life into the Commerce Clause. I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It’s not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That’s a very important factor. It wasn’t present in Lopez at all. I think the members of Congress had heard the same thing I had heard in law school, that this is an important—and they hadn’t gone through the process of establishing a record in that case.[7]

Federalism

[S]imply because you have a problem that needs addressing, it’s not necessarily the case that Federal legislation is the best way to address it...[T]he constitutional limitation doesn’t turn on whether it’s a good idea. There is not a ‘‘good idea’’ clause in the Constitution. It can be a bad idea, but certainly still satisfy the constitutional requirements.[8]

Judicial activism and deference to legislatures

[T]he Supreme Court has, throughout its history, on many occasions described the deference that is due to legislative judgments. Justice Holmes described assessing the constitutionality of an act of Congress as the gravest duty that the Supreme Court is called upon to perform …[I]t’s a principle that is easily stated and needs to be observed in practice, as well as in theory. Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic.[9]

In referring to Brown v. Board that overturned school segregation: "The Court in that case, of course, overruled a prior decision. I don't think that constitutes judicial activism because obviously if the decision is wrong, it should be overruled. That's not activism. That's applying the law correctly."

Roe v. Wade

In his Senate testimony, Roberts acknowledged that, on the Circuit Court, he would have an obligation to follow precedents established by the Supreme Court, including the controversial decision invalidating many restrictions on the right to an abortion. He stated: "Roe v. Wade is the settled law of the land...There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey." [10] (See John Roberts Supreme Court nomination and hearings for speculation about Roberts' current views and the potential impact they might have during his 2005 confirmation hearings and, ultimately, the Supreme Court.)

Judicial opinions

Roberts has authored nearly 40 opinions in his two years in the D.C. Circuit but has elicited only two dissents on his decisions, and on the many other cases he has heard in that time, he has authored only three dissenting opinions of his own. Because of this short record, Roberts does not have an extensive case history from which a general approach to the Constitution can be determined, and he appears not to have publicly stated his views on the subject. He has even said that "I do not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document."[11] Cass Sunstein, a law professor at the University of Chicago argues that in general, Roberts appears to be a judicial minimalist, emphasizing precedent, as opposed to an originalism-oriented or rights-focused jurist. "Judge Roberts's opinions thus far are careful, lawyerly, and narrow. They avoid broad pronouncements. They do not try to reorient the law."[12]

His past rulings that are most likely to be discussed in his upcoming confirmation hearing dealt with the following issues:

Fourth and Fifth Amendments

The D.C. Circuit case Hedgepeth v. Washington Metro Authority, 284 F. Supp. 2d 145, involved a twelve-year-old girl who was invited to incriminate herself as an illegal drug user, taken into custody, handcuffed, driven to police headquarters, booked, and fingerprinted because she violated a publicly-advertised zero tolerance "no eating" policy in a Washington D.C. metro station by eating a single french fry. Roberts wrote for a 3-0 panel affirming a district court decision that dismissed the girl's complaint, which was predicated on the Fourth and Fifth Amendments, specifically the claim that an adult would have only received a citation for the same offense, while children must be detained until parents can be notified.

Roberts began his opinion by noting, "No one is very happy about the events that led to this litigation," and pointing out that the policies under which the girl was apprehended had since been changed. Because age discrimination is allowed under previous jurisprudence if there is any rational basis for it, only weak state interests were required to justify the policy. "Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen -- detention until the parent is notified and retrieves the child -- certainly does that, in a way issuing a citation might not." Roberts concluded that the age discrimination and detention in this case were constitutional, noting that "the question before us... is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution.", language reminiscent of Justice Potter Stewart's dissent in Griswold v. Connecticut, in which Justice Stewart wrote, "We are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that, I cannot do."

Military tribunals

In Hamdan v. Rumsfeld, Roberts was part of a unanimous panel overturning the district court ruling and upholding military tribunals set up by the Bush administration for trying terrorism suspects known as enemy combatants. Circuit Judge A. Raymond Randolph, writing for the court, ruled that Hamdan, a driver for al-Qaeda leader Osama bin Laden [13], could be tried by a military court because (1) the military commission had the approval of Congress; (2) the Third Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies enforceable in U.S. courts; and (3) even if the Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because, for a conflict such as the war against al-Qaeda (considered by the court as a separate war from that against Afghanistan itself) that is not between two countries, it guarantees only a certain standard of judicial procedure without speaking to the jurisdiction in which the prisoner must be tried. The court held open the possibility of judicial review of the results of the military commission after the current proceedings have ended.[14]

Environmental regulation

On the U.S. Court of Appeals, Roberts wrote a dissenting opinion regarding Rancho Viejo, LLC v. Norton, 323 F.3d 1062, a case involving the protection of a rare Californian toad under the Endangered Species Act. When the court denied a rehearing en banc, 334 F.3d 1158 (D.C. Cir. 2003), Roberts dissented, arguing that the original opinion was wrongly decided because he found it inconsistent with United States v. Lopez and United States v. Morrison in that it focused on the effects of the regulation, rather than the taking of the toads themselves, on interstate commerce. In Roberts's view, the Commerce Clause of the Constitution did not permit the government to regulate activity affecting what he called "a hapless toad" that "for reasons of its own lives its entire life in California." He said that reviewing the case could allow the court "alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent."

Bibliography of Articles by John G. Roberts, Jr.

• Developments in the Law – Zoning, “The Takings Clause,” 91 Harv. L. Rev. 1462 (1978). (Section III of a longer article beginning on p. 1427)
• Comment, “Contract Clause – Legislative Alteration of Private Pension Agreements: Allied Structural Steel Co. v. Spannaus,” 92 Harv. L. Rev. 86 (1978). (Subsection C of a longer article beginning on p. 57)
• New Rules and Old Pose Stumbling Blocks in High Court Cases, The Legal Times, February 26, 1990, co-authored with E. Barrett Prettyman, Jr.
• Article III Limits on Statutory Standing, 42 Duke L. J. 1219 (1992-1993).
• Riding the Coattails of the Solicitor General, The Legal Times, March 29, 1993.
• The New Solicitor General and the Power of the Amicus, The Wall Street Journal, May 5, 1993.
• The 1992-1993 Supreme Court, Public Interest Law Review 107 (1994).
• Forfeitures: Does Innocence Matter?, New Jersey Law Journal, October 9, 1995.
• Thoughts on Presenting an Effective Oral Argument, School Law in Review (1997).
• The Bush Panel, 2003 BYU L. Rev. 62 (2003). (Part of a tribute to Rex. E. Lee beginning on p. 1. “The Bush Panel” contains a speech by Roberts.)
• Oral Advocacy and the Re-emergence of a Supreme Court Bar, 30 J. Supr. Ct. Hist. 68 (2005).

Sources

News articles

• "Roberts Listed in Federalist Society '97-98 Directory". Washington Post. July 25, 2005. 14
• "Appellate judge Roberts is Bush high-court pick." MSNBC. July 19, 2005. [15]
• Argetsinger, Amy, and Jo Becker. "The nominee as a young pragmatist: under Reagan, Roberts tackled tough issues." Washington Post. July 22, 2005. [16]
• Barbash, Fred, et al: "Bush to nominate Judge John G. Roberts Jr." Washington Post. July 19, 2005. [17]
• Becker, Jo, and R. Jeffrey Smith. "Record of accomplishment—and some contradictions." Washington Post. July 20, 2005. [18]
• Bumuller, Elisabeth, and David Stout: "President chooses conservative judge as nominee to court." New York Times. July 19, 2005. [19]
• "Bush: Meeting with Roberts during recount wasn't political." Associated Press. July 23, 2005. [20]
• Entous, Adam. "Bush picks conservative Roberts for Supreme Court." Reuters. July 19, 2005. [21]
• Kallestad, Brent. "Roberts helped counsel Jeb Bush." Associated Press. July 21, 2005. [22]
• Lane, Charles. "Federalist affiliation misstated: Roberts does not belong to group." Washington Post. July 21, 2005. [23]
• Lane, Charles. "Short record as judge is under a microscope." Washington Post. July 21, 2005. [24]
• Groppe, Maureen, and John Tuohy. "If you ask John where he's from, he says Indiana." Indianapolis Star. July 20, 2005. [25]
• McFeatters, Ann. "John G. Roberts Jr. is Bush choice for Supreme Court." Pittsburgh Post-Gazette. July 19, 2005. [26]
• Riechmann, Deb. "Federal judge Roberts is Bush's choice." Associated Press. July 20, 2005. [27]
• "Roberts: A smart, self-effacing 'Eagle Scout.'" Associated Press. July 20, 2005. [28]
• "Who Is John G. Roberts Jr.?" ABC News. July 19, 2005. [29]

Government/official biographies

• "President announces Judge John Roberts as Supreme Court nominee." Office of the Press Secretary, Executive Office of the President. [30]
• "Roberts, John G., Jr." Federal Judicial Center. [31]
• "John G. Roberts biography." Office of Legal Policy, U.S. Department of Justice. [32]
• "Biographical Sketches of the Judges of the U.S. Court of Appeals for the DC Circuit." United States Court of Appeals for the District of Columbia Circuit. [33]
• John G. Roberts Questionnaire for Appeals Court Confirmation Hearing (p. 297-339) and responses to Questions from Various Senators (p. 443-461) [34] (large PDF file)

Other

• Coffin, Shannen W. "Meet John Roberts: The President Makes the Best Choice." National Review Online. July 19, 2005. [35]
• "Former Hogan & Hartson partner nominated for the U.S. Supreme Court." Hogan & Hartson, LLP. July 20, 2005. [36]
• Goldman, Jerry. "John G. Roberts, Jr." Oyez. [37]
• "John G. Roberts, Jr. Fact Sheet" La Lumiere School. [38]
• "John G. Roberts federal campaign contributions." Newsmeat.com. July 19, 2005. [39]
• "John G. Roberts Jr." DKosopedia. July 19, 2005. [40]
• "Progress for America: Support for the Confirmation of John G. Roberts" [41]
• "Report of the Alliance for Justice: Opposition to the Confirmation of John G. Roberts to the U.S. Court of Appeals for the D.C. Circuit." Alliance for Justice. [42] (PDF file)
• "Wexler: Bush's Supreme Court pick insulting to disenfranchised Florida voters." Office of Representative Robert Wexler. July 20, 2004. [43]

Notes

1. ^ "Roberts: A smart, self-effacing 'Eagle Scout.'" Associated Press. July 20, 2005. [44]
2. ^ Lane, Charles. "Federalist affiliation misstated: Roberts does not belong to group." Washington Post. July 21, 2005. [45]
   Although in the days immediately following his nomination Roberts was widely reported as being a member of the Federalist Society—by media outlets including CNN, the Los Angeles Times, the Legal Times, and the Washington Post—and he has spoken at Federalist Society events, Roberts subsequently stated that he never has paid the group's $50 membership fee, and does not recall ever having been a member, although the 1997–1998 directory lists him as a member of the steering committee.

See also

• John Roberts Supreme Court nomination and hearings

External links

• Transcript of Senate Judiciary Committee hearing on the nomination of John Roberts to the D.C. circuit (Roberts Q&A on pages 17-79, plain text available here)
• Lewis, Neil A. "An Ultimate Capital Insider." New York Times. July 20, 2005
• FindLaw Lawyer Profile
• Complete list of Circuit Judge Roberts's opinions for the DC Circuit (last updated 26 July 2005)
• Federalist Society
• A summary of media-related cases handled by Supreme Court nominee John G. Roberts Jr. from The Reporters Committee for Freedom of the Press, July 21, 2005
• Experts Analyze Supreme Court Nominee John Roberts' Legal Record
• The Supreme Court Zeitgeist

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