Is Judge Roberts in the Mold of Scalia and Thomas's

Is Judge Roberts in the Mold of Scalia and Thomas?

July 20, 2005

As the nomination of Judge John Roberts to replace Justice Sandra Day O’Connor moves forward, the Senate and the American public need to know more about President Bush’s choice before making a sound decision about his readiness for the Supreme Court. Little is known about Judge Roberts at this point and it is incumbent upon the Senate to provide a fair and thorough examination of his opinions and judicial philosophy. Key unresolved issues include:

• Roberts’ personal opinion of constitutionally protected reproductive freedoms is still unknown. As deputy solicitor general in the first Bush administration, Roberts co-wrote a brief in 1991 which argued "Roe was wrongly decided and should be overruled." He went as far as to suggest that a right to an abortion finds "no support in the text, structure, or history of the Constitution." The position he took at the time went well beyond what was necessary to advocate his view in the case that doctors in federally-funded family planning programs should be prohibited from discussing abortions with their patients. Roberts' personal views need to be probed further to explain these positions because as a key swing vote on the Supreme Court, he would be in the position to overturn precedent on abortion and other privacy rights such as the right to contraception.
  
  
• Roberts’ commitment to protecting consumers and workers rather than corporate interests is murky. The Wall Street Journal reports Bush's "business backers were cheered by the appointment of Judge Roberts." Roberts has represented Toyota before the Supreme Court, successfully arguing in favor of limiting claims by disabled workers. Roberts has also argued on behalf of mining companies who wanted to use criminal contempt fees to force the end of a strike which had been ruled unlawful. On the other hand, Roberts also represented 19 states in a suit filed against Microsoft for antitrust violations. Roberts' understanding of the need for worker and consumer protections must be explored further in the Senate hearings.
  
  
• Roberts’ willingness to uphold environmental protections is also unclear. In a 2003 case, Roberts wrote a dissenting opinion that questioned his court's precedent for upholding protections in the federal Endangered Species Act based on his position that the species in question never crossed state lines. The Senate should determine Roberts’ opinions about the use of the Commerce Clause to protect health, safety, and the environment and probe his views of federal law-making authority more generally.