Judge Roberts on Trial

Almost every recorded political statement John Roberts has made throughout his life, from adolescence to his nomination as chief justice, suggests that he has strong conservative political convictions and instincts, and many people naturally fear that he will use his great power on the Supreme Court in the service of his politics. He promised that he would not, but the Senate Judiciary Committee should have been more effective than it was in testing that promise. In fact it failed dramatically in its responsibility to do so.

In his public career Roberts has opposed improving protection for the voting rights of minorities; held that it would be constitutional for Congress to strip the federal courts of their powers to supervise racial integration; denigrated efforts by a group of women legislators to reduce gender inequality in the workplace; referred to the right of privacy as “so-called”; signed a brief advising the Supreme Court to overrule Roe v. Wade; and described a Supreme Court decision outlawing a moment of silence that might be used for prayer in schools as “indefensible.” (See William L. Taylor’s recent article on Roberts’s career in these pages. )

In the Senate hearings now concluded, Roberts repeatedly said that the more outrageous of these opinions were only those of a lawyer doing his job, in the Justice Department and the White House, for a very conservative client: the Reagan administration. But of course he did not have to join that administration and the tone of many of his comments suggests not just an obedient staff member but an enthusiastic proponent. The Bush administration has refused to allow senators to see Roberts’s more recent memoranda, written when, as deputy solicitor general in the first Bush administration, he had more responsibility for making policy. We can only speculate about what political opinions these would reveal.

Nor is there much in Roberts’s record as disclosed to the Senate that suggests any personal impulse to moderate the right-wing policies he has defended or any concern for those at the bottom of our society whom such policies would injure. He did advise his superiors that stripping the courts of their jurisdiction over the use of busing as a remedy for racial inequality, though in his opinion constitutional, would be “bad policy.” But he said it would be bad for technical reasons: because, as he told Senator Herbert Kohl, it might “lead to a situation where there’s arguable inconsistency and disuniformity in federal law.” He did advise the administration to sign a treaty condemning genocide, but only because a failure to sign it would be bad for the nation’s image. As a lawyer in private practice he acted pro bono in advising a gay rights group preparing for a Supreme Court challenge to Colorado’s discriminatory constitutional amendment. But he did so, he told Senator Richard Durbin, because the partners of his firm asked him to, and he seemed happy to add, in response to Durbin’s further question …

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