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John Roberts Supreme Court nomination

John Roberts, 17th Chief Justice of the United States

The Senate hearings on the nomination of John Roberts to the Supreme Court, began on September 12, 2005, with U.S. Senators posing questions to Roberts, who was nominated by President George W. Bush to fill the vacancy of Chief Justice of the United States.

Roberts had been nominated to the Supreme Court to replace the retiring Justice Sandra Day O'Connor; however, on September 5, following Chief Justice William Rehnquist's death, President Bush announced the nomination of Roberts for the position of Chief Justice and formally sent notice to the United States Senate of the new nomination and the withdrawal of Roberts's prior nomination.

On September 29, Roberts was confirmed as Chief Justice by a full Senate vote of 78–22. The 50-year-old Roberts became the youngest Chief Justice in recent history. Only John Marshall, who was 45 when he joined the court in 1801, and John Jay, appointed at age 44 in 1789, were younger.


Confirmation processEdit

President George W. Bush shakes hands with his Supreme Court Justice nominee John Roberts after his remarks on the State Floor of the White House, Tuesday evening, July 19, 2005.

Prior to naming Roberts, Bush reportedly considered a wide range of candidates.

With the death of Chief Justice Rehnquist, Bush withdrew Roberts' nomination for associate justice and renominated him for chief justice, with only a slight delay in his confirmation hearings to allow for Rehnquist's funeral services.[1]

Former Senator Fred Thompson helped to promote Roberts' nomination. The nomination was first considered by the 18-member Senate Judiciary Committee, which voted 13–5 on September 22 to send the nomination to the full Senate.

On September 29, Roberts was confirmed by the full Senate by a vote of 78–22.[2] Hours after confirmation, he was sworn in by Associate Justice John Paul Stevens at the White House.

Role of the ABAEdit

Nominees to the Supreme Court are evaluated by the American Bar Association's Standing Committee on Federal Judiciary. The opinions of the committee bind neither the President nor the Senate; however, they are generally taken into account. The panel is composed of fifteen federal judges (but not Supreme Court Justices), including at least one from each federal judicial circuit. The body assesses the nominee "solely to professional qualifications: integrity, professional competence and judicial temperament," and offers a rating of "well qualified," "qualified," or "not qualified." On August 17, the ABA committee unanimously gave Roberts a "well qualified" rating.


Senate Judiciary Committee confirmation hearings of John Roberts to be Chief Justice of the Supreme Court of the United States, 2005

How the hearings progressedEdit

Senate Judiciary Committee Chairman Arlen Specter had called for a final vote by the committee on or before September 15, but Rehnquist's death and the renomination of Roberts for Chief Justice caused a delay in the first round of questioning, each Senator having 30 minutes to query the nominee. During the course of the day, Roberts answered questions from 16 of the 18 committee members, on a variety of topics. He affirmed his commitment to a constitutional right to privacy, clarified his position on civil rights during wartime, and took a conservative position on the use of international law in interpreting the U.S. Constitution.[3]

On September 14, the hearing resumed at 9:00 a.m., with the completion of the first round of questioning, followed by the start of the second round of questioning. Questioning did not finish this day, and was scheduled to be continued the next day.

On September 15, the hearing again resumed at 9:00 a.m., with the completion of the final round of questioning of Roberts. Later, the committee went into private session to discuss FBI reports on the nominee, a standard procedure followed for all nominees to federal courts. Following this, the committee heard testimony from the American Bar Association and six panels of various witnesses for the remainder of the afternoon and into early evening. The hearings were adjourned with 24 hours to remain for committee members to submit written questions to Roberts, which were to be answered by him as thoroughly as practicable.

On September 22, the committee voted 13–5 to send Roberts's confirmation to the full Senate. Senators Biden, Durbin, Feinstein, Kennedy, and Schumer were the five "no" voters. The full 100-member Senate subsequently debated Roberts' nomination, beginning on September 26.

The Senate voted on the nomination beginning at 11:30 a.m. EDT on September 29, with Roberts winning confirmation by a 78–22 vote. All 55 Republicans voted to confirm Roberts; 22 Democrats, including Senate Judiciary Committee ranking member Patrick Leahy of Vermont, also voted to confirm Roberts, as did the one independent (Jim Jeffords). 22 Democrats, including Senate Minority Leader Harry Reid of Nevada, voted in opposition.

Questions and answersEdit

During Judge William H. Pryor 's confirmation hearings for a federal bench in Atlanta, Senator Charles Schumer said he was troubled by Pryor's "deeply held personal beliefs".[4] There were predictions by some, notably the Catholic League for Civil and Religious Rights,[5] Notre Dame law professor Charles Rice in the National Review,[4] the Center for Jewish Values, and the Catholic organization Fidelis[4] that the pattern would be repeated with Roberts' confirmation hearing. Most Rev. Charles Chaput, OFM Cap, Archbishop of Denver, noted that "many people already believe that a new kind of religious discrimination is very welcome at the Capitol, even among elected officials who claim to be Catholic," concluding that "the bias against 'papism' is alive and well in America." However, others did not interpret the clause as prohibiting Senate inquiry into the religious beliefs of a nominee; rather they held that religious inquiries by the Senate are not the application of a religious Test (or disqualification), but a valid form of inquiry into Roberts' source of values and beliefs, which they consider to be highly relevant to a position such as Supreme Court Justice.

On September 13, during the second day of confirmation hearings Senator Arlen Specter asked Roberts whether his faith would affect his opinions on the bench. Roberts responded that "there is nothing in my personal view based on faith or other sources that would prevent me from applying the precedents of the court faithfully in accord with the principles of stare decisis." Later the same day, he also said "my faith and my religious beliefs do not play a role in my judging. ... I look to the law. I do not look to the Bible or other religious books."[3] On September 14, Senator Dianne Feinstein asked Roberts about the "role Catholicism would play" in his tenure as a justice. Roberts declined to endorse President Kennedy's statement that "separation of church and state is absolute," telling Feinstein, "I don't know what you mean by 'absolute'." Some consider such questioning to be a revival of anti-Catholic bigotry reminiscent of the public concern about Catholic influence that presidential candidate John F. Kennedy faced in 1960, and exemplified by the controversial Blaine Amendments.[6]

Adoption recordsEdit

While investigating Roberts' life, the New York Times was accused of attempting to unseal records detailing the 2000 adoption by Roberts and his wife of two infants born in Ireland[7] via a Latin American country.[8] The Times denied any attempts to unseal legal records and stated that "[o]ur reporters made initial inquiries about the adoptions" and "[t]hey did so with great care, understanding the sensitivity of the issue."

The Times was condemned by the National Council for Adoption, "NCFA denounces, in the strongest possible terms, the shocking decision of the New York Times to investigate the adoption records of Justice John Roberts' two young children. The adoption community is outraged that, for obviously political reasons, the Times has targeted the very private circumstances, motivations, and processes by which the Roberts became parents."[9]

The reasons for the adoption happening in the unnamed Latin American country remain unclear, though it was noted that the Irish 1991 Adoption Act only allows adoption of children born in Ireland by people resident in Ireland.[10]

Federalist SocietyEdit

Judge Roberts has stated that he cannot recall ever having been a member of the Federalist Society. He sought and received published corrections from several major news organizations retracting earlier reports that he had been a member.[11] On July 25, 2005, however, the Washington Post reported that John Roberts is listed in the Society's 1997–1998 leadership directory as serving on the Steering Committee of the Federalist Society. The same source also indicates the possibility that the individuals listed in the "leadership directory" are, in a technical sense, not necessarily "members" of the society, and no confirmable membership information is officially disclosed by the Society itself.

2000 presidential electionEdit

While an attorney at Hogan & Hartson, Roberts met with Florida Governor Jeb Bush and gave advice on the legal aspects of election disputes during the Florida recount of 2000.[12] According to Ted Cruz, an advisor on Bush's 2000 campaign, Roberts helped polish some legal briefs and held a "moot court" session to prepare Bush's lawyers for arguments in Bush v. Palm Beach County Canvassing Board and Bush v. Gore.[13]

NARAL airs, then pulls, controversial advertisementEdit

On August 10, 2005, NARAL Pro-Choice America, an advocate for legal abortion, aired controversial advertisements featuring Emily Lyons,[14] an abortion clinic director who was injured in the Eric Rudolph clinic bombing in 1998. The ad alleged that

Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber... America can't afford a justice whose ideology leads him to excuse violence against other Americans.

The ads ran only in Maine and Rhode Island, the home states of moderate Republican Senators, Olympia Snowe, Susan Collins and Lincoln Chafee.

The brief, which was filed almost seven years before the bombing of Lyons' clinic and which dealt with obstructing access to clinics, not bombings,[15] argued that while abortion protesters from Operation Rescue could not be prosecuted under the 1871 Federal Ku Klux Klan Act for discrimination, they had violated state law by trespassing. Ultimately, the Supreme Court agreed, ruling 6 to 3 in Bray v. Alexandria Women's Health Clinic that opposition to abortion did not constitute discrimination against women "as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners' unlawful demonstrations."

Even before the ad was shown on television, White House spokesman Steve Schmidt responded to them, describing the claims as "outrageously false, bordering on the slanderous." While Roberts in his amicus brief for the Government, argued that abortion protestors could not be prosecuted federally for discrimination, he pointed out that the defendants obstruction was illegal under Virginia law. Further, Roberts has argued in a Reagan administration memo that violence such as bombings had no protection under the law: "No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals," he wrote.[16] NARAL was unimpressed with this memo, arguing that it was not an official action like his amicus brief.[citation needed]

NARAL argued that "This wasn't an arcane legal dispute, but a fight over whether or not law enforcement could use their most effective weapon [the Klan Act] against extremists who use violence."[17] After the Bray decision, Congress passed the Freedom of Access to Clinic Entrances Act, which criminalized obstructing access to abortion clinics at the Federal level, effectively replacing the Klan Act with an even more effective legal weapon against those that obstructed access to clinics. National Review Online argued that "The fact that this law failed to deter the 1998 bombing that injured the clinic worker featured in NARAL's ad makes it all the more ludicrous to suggest that Roberts's proper reading of the Ku Klux Klan Act of 1871 in 1991 is somehow responsible."[18]

In the face of intense criticism even among supporters of legal abortion, NARAL eventually withdrew the inflammatory ads.[citation needed]

Roberts is the second sitting justice to have graduated from Harvard College (along with David Souter) and the sixth sitting justice to attend Harvard Law School (Souter, Stephen Breyer, Antonin Scalia, and Anthony Kennedy all graduated from Harvard Law School, while Ruth Bader Ginsburg attended there for two years and transferred to Columbia Law School). He is the 109th justice to serve on the court, as well as the 17th Chief Justice.[citation needed]

With the addition of Roberts, the Supreme Court's membership had more Roman Catholics with four (Roberts, Scalia, Thomas, and Kennedy) than justices of other denominations. Upon the confirmation of Samuel Alito in 2006, the Roman Catholics on the court numbered five, with two Protestant (Stevens and Souter) and two Jewish (Ginsburg and Breyer) justices.[citation needed]

Full Senate voteEdit

State Senator Party
Alabama Jeff Sessions R Yea
Alabama Richard Shelby R Yea
Alaska Lisa Murkowski R Yea
Alaska Ted Stevens R Yea
Arizona Jon Kyl R Yea
Arizona John McCain R Yea
Arkansas Blanche Lincoln D Yea
Arkansas Mark Pryor D Yea
California Barbara Boxer D Nay
California Dianne Feinstein D Nay
Colorado Wayne Allard R Yea
Colorado Ken Salazar D Yea
Connecticut Chris Dodd D Yea
Connecticut Joe Lieberman D Yea
Delaware Joe Biden D Nay
Delaware Tom Carper D Yea
Florida Mel Martínez R Yea
Florida Bill Nelson D Yea
Georgia Saxby Chambliss R Yea
Georgia Johnny Isakson R Yea
Hawaii Daniel Akaka D Nay
Hawaii Daniel Inouye D Nay
Idaho Larry Craig R Yea
Idaho Mike Crapo R Yea
Illinois Dick Durbin D Nay
Illinois Barack Obama D Nay
Indiana Evan Bayh D Nay
Indiana Richard Lugar R Yea
Iowa Chuck Grassley R Yea
Iowa Tom Harkin D Nay
Kansas Sam Brownback R Yea
Kansas Pat Roberts R Yea
Kentucky Jim Bunning R Yea
Kentucky Mitch McConnell R Yea
Louisiana Mary Landrieu D Yea
Louisiana David Vitter R Yea
Maine Susan Collins R Yea
Maine Olympia Snowe R Yea
Maryland Barbara Mikulski D Nay
Maryland Paul Sarbanes D Nay
Massachusetts Ted Kennedy D Nay
Massachusetts John Kerry D Nay
Michigan Carl Levin D Yea
Michigan Debbie Stabenow D Nay
Minnesota Norm Coleman R Yea
Minnesota Mark Dayton D Nay
Mississippi Thad Cochran R Yea
Mississippi Trent Lott R Yea
Missouri Kit Bond R Yea
Missouri Jim Talent R Yea
Montana Max Baucus D Yea
Montana Conrad Burns R Yea
Nebraska Chuck Hagel R Yea
Nebraska Ben Nelson D Yea
Nevada John Ensign R Yea
Nevada Harry Reid D Nay
New Hampshire Judd Gregg R Yea
New Hampshire John E. Sununu R Yea
New Jersey Jon Corzine D Nay
New Jersey Frank Lautenberg D Nay
New Mexico Jeff Bingaman D Yea
New Mexico Pete Domenici R Yea
New York Hillary Clinton D Nay
New York Chuck Schumer D Nay
North Carolina Richard Burr R Yea
North Carolina Elizabeth Dole R Yea
North Dakota Kent Conrad D Yea
North Dakota Byron Dorgan D Yea
Ohio Mike DeWine R Yea
Ohio George Voinovich R Yea
Oklahoma Tom Coburn R Yea
Oklahoma Jim Inhofe R Yea
Oregon Gordon H. Smith R Yea
Oregon Ron Wyden D Yea
Pennsylvania Rick Santorum R Yea
Pennsylvania Arlen Specter R Yea
Rhode Island Lincoln Chafee R Yea
Rhode Island Jack Reed D Nay
South Carolina Jim DeMint R Yea
South Carolina Lindsey Graham R Yea
South Dakota Tim Johnson D Yea
South Dakota John Thune R Yea
Tennessee Lamar Alexander R Yea
Tennessee Bill Frist R Yea
Texas John Cornyn R Yea
Texas Kay Bailey Hutchison R Yea
Utah Bob Bennett R Yea
Utah Orrin Hatch R Yea
Vermont Jim Jeffords I Yea
Vermont Patrick Leahy D Yea
Virginia George Allen R Yea
Virginia John Warner R Yea
Washington Maria Cantwell D Nay
Washington Patty Murray D Yea
West Virginia Robert Byrd D Yea
West Virginia Jay Rockefeller D Yea
Wisconsin Russ Feingold D Yea
Wisconsin Herb Kohl D Yea
Wyoming Mike Enzi R Yea
Wyoming Craig L. Thomas R Yea

Notes: D = Democratic; R = Republican; I = independent; ID = Independent Democratic

Judicial viewsEdit

2003 hearings on appeals court nominationEdit

During Judiciary Committee hearings on his nomination to the circuit court, Roberts testified on his background and views on jurisprudence.[19] Roberts was subsequently approved by the Senate by unanimous consent.[20]

General approach to the ConstitutionEdit

Because Roberts had only been a judge for two years, he did not have an extensive case history from which a general approach to the Constitution can be determined. He also had not publicly stated his views on the subject, and said that "I don't necessarily think that it's the best approach to have an all-encompassing philosophy." which frustrated the Senators during his 2003 nomination.[21] In law professor Randy Barnett's words, "In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him".[22] 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' opinions thus far are careful, lawyerly, and narrow. They avoid broad pronouncements. They do not try to reorient the law."[23]

The Commerce ClauseEdit

[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.[19]


[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.[19]

Judicial activism and deference to legislaturesEdit

[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.[19]

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."

Record as an attorneyEdit

[T]here is a longstanding tradition in our country — dating back to one of the more famous episodes, of course, being John Adams' representation of the British soldiers involved in the Boston Massacre — that the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer as his personal beliefs or his personal positions.[21]

On Roe v. WadeEdit

When testifying before the Senate in 2003, 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."[21] This consideration would not apply if he were a Justice of the Supreme Court, however. In that capacity he would be entitled to vote to limit or overturn Roe and related cases.

Life tenureEdit

In a 1983 memo analyzing a Senate resolution to limit the judges to 10-year terms, Roberts questioned the desirability of lifetime tenure, arguing that when the Constitution was drafted, "people simply did not live as long as they do now" and that contemporary judges risked "los[ing] all touch with reality through decades of ivory tower existence" by becoming "insulated from the normal currents of life for 25 or 30 years." He also saw limiting the terms of judges as a good way to ensure turnover and to prevent judges from becoming too activist.[24] This could not be extended to the Supreme Court, and Roberts' position now, because of the express constitutional requirement of a life term.


Judge Roberts has specifically disassociated himself from cases he was involved with during his tenure as Deputy Solicitor General. In a footnote to a 1994 law review article, he wrote:

In the interest of full disclosure, the author would like to point out that as Deputy Solicitor General for a portion of the 1992–93 term, he was involved in many of the cases discussed below. In the interest of even fuller disclosure, he would also like to point out that his views as a commentator on those cases do not necessarily reflect his views as an advocate for his former client, the United States.

Notable arguments on behalf of clientsEdit

As Deputy Solicitor GeneralEdit

Arguing for the results sought by his client, the President of the United States.


Roberts is listed as a coauthor on a brief before the Supreme Court in Rust v. Sullivan, 500 U.S. 173 (1991), defending the validity of a Department of Health and Human Services regulation that prohibited recipients of funding under the Public Health Service Act from not only providing abortions, but also counselling, advising, or promoting the idea that a woman seek an abortion:

We continue to believe that Roe v. Wade was wrongly decided and should be overruled. As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 497 U.S. 417 (1990); Webster v. Reproductive Health Services, 492 U.S. 490 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.[25]

The brief in question lists the following authors: Michael J. Astrue, General Counsel; Joel Mangel, Deputy Chief Counsel; Carol C. Conrad, Attorney, Department of Health and Human Services; Kenneth W. Starr, Solicitor General; Stuart M. Gerson, Assistant Attorney General; John Roberts, Deputy Solicitor General; Jeffrey P. Minear, Assistant to the Solicitor General; Anthony J. Steinmeyer, Lowell v. Sturgill, Jr., Attorneys.

For further discussion of Roberts's views on Roe, see his comments at the Judiciary Committee hearings under "Views."

Environmental regulationEdit

Roberts argued against the private citizen's right to sue the federal government for violations of environmental regulations in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Separation of church and stateEdit

In a brief in Lee v. Weisman, 505 U.S. 577 (1992), a case about school prayer, Roberts wrote that "history shows that religious acknowledgments were part of the ceremonies of all three branches of government when the Republic was founded," and that "[n]othing in the text of the Establishment Clause or in the concerns leading to its adoption suggests that a ceremonial acknowledgment of religion is a "law respecting an establishment of religion'."[26] In the process, he argued that the Lemon v. Kurtzman, which was used as precedent for Lee, was wrongly decided. He argued that Marsh v. Chambers, a competing precedent on church–state separation that is less restrictive, is a clearer decision that better interprets the First Amendment to the United States Constitution.[27]

Private law practiceEdit

(arguing for the results sought by his clients)[citation needed]

Environmental regulationEdit

In the case Bragg v. West Virginia Coal Association, Roberts argued on behalf of the National Mining Association in support of the legality of mountaintop removal.[citation needed]

Business–labor relationsEdit

In a case before the Supreme Court, Roberts argued on behalf of mining companies who wanted to use criminal contempt fines to force the end of a strike which had been ruled unlawful. The case, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994), ended in a ruling in favor of the unions, with the majority opinion authored by Justice Harry Blackmun.[28]

Gay rightsEdit

The Los Angeles Times reports that Roberts was "instrumental" behind-the-scenes in working to get the Supreme Court to declare a Colorado state constitutional amendment unconstitutional in the case of Romer v. Evans. The amendment prohibited all legislative, executive and judicial action designed to protect homosexual persons from discrimination.[citation needed]

The Supreme Court, following the lead of Justice Kennedy, held that the amendment violated the equal protection clause of the federal Constitution. Roberts performed his work on the behalf of his law firm's pro bono department at Hogan and Hartson. Hogan and Hartson allow their employees to refuse help on pro bono cases if they find them "morally repugnant". At least one conservative group[29] had planned to oppose Robert's nomination because of this case.

Judicial opinionsEdit

Roberts has authored 49 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.

Fourth and Fifth AmendmentsEdit

The D.C. Circuit case Hedgepeth v. Washington Metro Authority,[30] 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 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 tribunalsEdit

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[31] could be tried by a military court because (1) the military commission had the approval of the United States 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.[32]

Environmental regulationEdit

On the U.S. Court of Appeals, Roberts wrote a dissenting opinion regarding Rancho Viejo, LLC v. Norton,[33] a case involving the protection of a rare Californian toad under the Endangered Species Act. When the court denied a rehearing en banc,[34] 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."

Other opinionsEdit

During his time on the Circuit Court of Appeals for the District of Columbia Judge Roberts wrote opinions for 49 cases (as of July 26, 2005) including the following:

Case Argued Decided
Ramaprakash v. FAA[35] September 18, 2003 October 21, 2003
United States v. Bolla Steven[36] September 19, 2003 October 24, 2003
Bloch Felix S. v. Powell, Colin L.[37] October 14, 2003 November 21, 2003
Hedgepeth v. Washington Metro Transit Authority[30] September 17, 2004 October 26, 2004
Universal City Studios v. Peters[38] February 17, 2005 April 8, 2005
United States v. Jackson[39] April 4, 2005 July 22, 2005

A complete list can be found at the end of this page under "External links".

Summary of cases argued as a private attorneyEdit

During his work at Hogan & Hartson, Roberts argued before several appellate courts and several cases before the Supreme Court:

Case Argued Decided Represented
First Options v. Kaplan[40] March 22, 1995 May 22, 1995 Respondent
Adams v. Robertson[41] January 14, 1997 March 3, 1997 Respondent
Alaska v. Native Village of Venetie Tribal Government[42] December 10, 1997 February 25, 1998 Petitioner
Feltner v. Columbia Pictures Television, Inc.[43] January 21, 1998 March 31, 1998 Petitioner
NCAA v. Smith[44] January 20, 1999 February 23, 1999 Petitioner
Rice v. Cayetano[45] October 6, 1999 February 23, 2000 Respondent
Eastern Associated Coal Corp. v. Mine Workers[46] October 2, 2000 November 28, 2000 Petitioner
TrafFix Devices, Inc. v. Marketing Displays, Inc.[47] November 29, 2000 March 20, 2001 Petitioner
Toyota Motor Mfg v. Williams[48] November 7, 2001 January 8, 2002 Petitioner
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency[49] January 7, 2002 April 23, 2002 Respondent
Rush Prudential HMO, Inc. v. Moran[50] January 16, 2002 June 20, 2002 Petitioner
Gonzaga University v. Doe[51] April 24, 2002 June 20, 2002 Petitioner
Barnhart v. Peabody Coal Co.[52] October 8, 2002 January 15, 2003 Respondent
Smith v. Doe[53] November 13, 2002 March 5, 2003 Petitioner


  1. ^ "Supreme Court Nomination and Withdrawal Sent to the Senate". September 5, 2005. Retrieved April 16, 2010.
  2. ^ "Roll Call Vote 109th Congress - 1st Session". U.S. Senate.
  3. ^ a b "Privacy, Precedents Dominate Roberts Session". 13 September 2005.
  4. ^ a b c Stephen Presser & Charles Rice on John Roberts on National Review Online
  5. ^ "Page not found - Catholic League". Archived from the original on 2005-11-23.
  6. ^ "Opinion".
  7. ^ "John Roberts". Time. July 24, 2005.
  8. ^[permanent dead link]
  9. ^ "Columbia, SC Breaking News, Sports, Weather & More - & The State". Archived from the original on 2005-08-08.
  10. ^ "Adoption Act, 1991".
  11. ^ Lane, Charles. (July 21, 2005). "Federalist affiliation misstated: Roberts does not belong to group". Washington Post.
  12. ^ Nominee Gave Quiet Advice on Recount, New York Times, July 21, 2005
  13. ^ Panel Sends Judge 10-Page Questionnaire, New York Times, July 25, 2005
  14. ^ "Archived copy". Archived from the original on 2005-09-29. Retrieved 2005-09-13.CS1 maint: Archived copy as title (link)
  15. ^ NARAL Falsely Accuses Supreme Court Nominee Roberts Archived 2005-08-11 at the Wayback Machine
  16. ^ Balz, Dan (August 9, 2005). "Ad Campaign Says Roberts Backed Violent Protesters". The Washington Post.
  17. ^ Archived from the original on September 3, 2005. Retrieved August 10, 2005. Missing or empty |title= (help)
  18. ^ "Archived copy". Archived from the original on 2005-09-04. Retrieved 2005-08-10.CS1 maint: Archived copy as title (link)
  19. ^ a b c d "Archived copy" (PDF). Archived from the original (PDF) on 2005-08-14. Retrieved 2005-08-09.CS1 maint: Archived copy as title (link)
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