Roberts Doesn’t Always Fit the Stereotype

Lake Tahoe planners had a problem. Their solution: John Roberts.

Roberts, at the time, was a Washington-based attorney and one of the nation’s premier Supreme Court practitioners. He had racked up an impressive won-loss record in dozens of Supreme Court appearances by the time the Tahoe (Calif.) Regional Planning Agency hired him in late 2002.

Roberts then proceeded to win one for the Tahoe regulatory agency, even as he dismayed the conservative private property advocates who were on the other side of the high-profile case.

“He was very impressive,” recalled Julie Regan, spokeswoman for the Tahoe Regional Planning Agency. “He displayed an instant command of the facts.”

With a favorable 6-3 Supreme Court ruling in the case known as Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, Roberts helped empower government agencies to impose building moratoria. He also enhanced his already estimable legal reputation.

It’s a reputation built over 65 arguments made before various federal appellate courts, including 39 before the U.S. Supreme Court. More recently, Roberts has fleshed out that reputation through more than 40 opinions he has written in two years on the U.S. Court of Appeals for the District of Columbia Circuit.

This record has helped make Roberts a wealthy man. In 2000, he reported earning $766,000 from his law firm. Substantively, this record also reveals much about Roberts’ thinking.

He is conservative, but not doctrinaire. His results can be hard-headed, but leavened with understated humor. He can be skeptical of how Congress justifies environmental and other laws under the Constitution’s Commerce Clause. He can also be pragmatic, sometimes seeming closer to a Sandra Day O’Connor than a Clarence Thomas.

“I’d have to say that I don’t have an overarching, guiding way of reading the Constitution,” Robert told the Senate Judiciary Committee in his January 2003 appeals court confirmation hearing. “I think different approaches are appropriate in different types of constitutional provisions.”

As a judge, Roberts often defers to executive authority, even when the results can seem harsh.

Last year, he sided with the administration in throwing out a lawsuit filed by 17 former U.S. prisoners of war from the first Persian Gulf War. The ex-POWs reported being starved, burned, whipped, electrically shocked and threatened with castration, and a district court ordered Iraq to pay $957 million.

The Bush administration, reasoning that the present-day Iraq shouldn’t have to pay for Saddam Hussein’s depredations, sought dismissal of the claim. Roberts agreed, writing a concurring opinion in which he did not make any reference to the soldiers or their torture.

Sympathetic plaintiffs and legal principles likewise collided in the 2004 case called Hedgepeth v. Washington Metro Area Transit Authority.

Metro police arrested a 12-year-old girl for eating a french fry in the mass transit system. Police searched the girl, handcuffed her, fingerprinted her and removed her shoelaces. Roberts, while saying “no one was happy” with what happened, nonetheless threw out a claim filed by the girl’s mother. Metro’s arrest policy, Roberts reasoned, was “rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.”

As a judicial author, Roberts favors clear phrasing. “Give me English words over Latin maxims,” he wrote in one 2004 opinion. He has also flashed a dry wit. In a 2003 case out of northern San Diego County called Rancho Viejo v. Norton, where he proposed limiting the reach of the Endangered Species Act, Roberts cited the “taking of a hapless toad that, for reasons of its own, lives its entire life in California.”

As an advocate, he has showed considerable sympathy for big business.

Roberts’ arguments on behalf of Toyota, for instance, helped secure a unanimous Supreme Court victory in the 2002 case called Toyota Motor Mfg. v Williams. The ruling narrowed Americans with Disabilities Act protection for people with carpal tunnel syndrome.

Roberts’ record, though, also defies simple categorization. It’s not one that can be easily summed up by a simple listing of his clients or a summary of his arguments. In part, that’s because Roberts took the position his clients required; in the first Bush administration, that included criticizing the 1973 Roe v. Wade abortion decision.

“I do not believe it is proper to infer a lawyer’s personal views from the positions that lawyer may advocate on behalf of a client in litigation,” Roberts advised senators in 2003.