PGHIMC - Pittsburgh Independent Media Center

Court Nominee A Defender Of GTMO Illegality And Of Mountaintop Mining Decapitation
by Coalition Against Roberts Wednesday, Jul. 20, 2005 at 2:01 PM
nd3366@yahoo.com (email address validated)

Roberts has ruled against the rights of Guantanamo prisoners illegally detained. He has written briefs supporting mining company decapitation of mountains. He is hostile to civil rights

Bush nominates defender of Guantanamo torture and mountain mining decapitation


White Male Lawyer BizPawn War Promoter nominated for court
has 'prolife' support

CIVIL LIBERTARIANS, ENVIRONMENTALISTS, PEACE, WOMEN'S RIGHTS AND
LABOR ADVOCATES OPPOSE THE APPELLATE RUBBER STAMP OF
GUANTANAMO TORTURE

NPR failed to mention in its coverage of the Bush nominee
that he was one of the DC justices who voted to violate
international law in regards to the Guantanamo prisoners.
No one gets onto the DC appellate court
unless he goes along with the NSA and CIA.

White male lawyer BizPawn War Promoter nominated for court
has 'prolife' support

John Roberts, many of whose cases before the Supreme Court
were for corporate clients, e.g. Toyota in opposition to
workers' injury claims, has been nominated to the 18th Century
Supreme Court.

DEFENDER OF COAL MINING MOUNTAIN DECAPITATORS
"Roberts' record with regard to his private practice work in
environmental cases is
decidedly mixed. He submitted an amicus brief on behalf of the
National Mining
Association in the 2001 case Bragg v. West Virginia Coal Association.
35 Citizens of
West Virginia who were adversely affected by the practice
of "mountaintop removal" had
sued the state, claiming that West Virginia's issuance to mining
companies of permits to
extract coal by blasting the tops off of mountains and depositing the
debris in nearby
valleys and streams harmed both the environment and their homes."


He's questioned the reach of Congress to enforce some parts of the
Endangered Species Act . He has also ruled against Arroyo
toad protection. And he is a member of the Federalist Society,
of which Ken Starr is a member.

In an opinion that Roberts' opponents often cite, he upheld the
arrest and detention of a 12-year-old girl for eating french fries in
a Washington subway station.

Hogan & Hartson is his law firm.

He is a graduate of Harvard Law and has not, IMHO,
spoken out against Harvard's primate abuse, investment
in earth abusers, poor treatment of women faculty members
and janitorial staff.

Researchers are checking his appellate court record
to determine how many times he decided for the illegal
regime in matters pertaining to Iraq, Afghanistan,
illegal detention of prisoners etc.

Corporate media are interviewing only those 'prolife'
groups which are also prowar.


Laura Bush expressed publicly a wish for a woman
nominee.
Diane Rehm: a nonlawyer would be welcome, who could think out of the
box.
Groups of lawyers have asked for an 18 year term, rather
than life.

The man who was illegally installed by a court in which Scalia
failed to recuse himself though his sons worked for Olsen
and Richard, the 2 Bush lawyers, is now nominating judges.
God send rivers through the Augean stables of Washington now.


CIVIL LIBERTARIANS

ACLU Concerned O'Connor Replacement Will Roll Back Vital Civil
Liberties Protections aclu.org

July 1, 2005




FOR IMMEDIATE RELEASE
Contact: media@aclu.org or media@dcaclu.org

WASHINGTON - The American Civil Liberties Union today expressed great
concern that the Bush administration will replace Justice Sandra Day
O'Connor, who announced her retirement today after more than two
decades on the court, with a nominee whose judicial philosophy is
fundamentally opposed to the progress made in protecting individual
rights over the past century.


Sandra Day O'Connor

CIVIL LIBERTIES CASES
> Grutter v. Bollinger
> Hamdi v. Rumsfeld
> Planned Parenthood v. Casey (off-site link)

> Cases in Which O'Connor Cast the Decisive Vote
> Other notable rulings


"Justice O'Connor fully earned her reputation as a centrist; she was
a conscientious jurist and, in a number of key cases, stood up for
individual rights and against a radically conservative vision of the
Constitution," said Steven Shapiro, ACLU Legal Director. "We are
gravely concerned that President Bush will use this opportunity to
nominate someone whose judicial philosophy is hostile to civil
liberties."

The ACLU is preparing to hold a board meeting in the coming weeks to
decide whether to oppose the Bush administration's nominee. As a
matter of policy, the ACLU will only oppose nominees to the Supreme
Court that are fundamentally hostile to civil liberties and will do
so upon a vote of the board of directors. The national board of the
ACLU has voted to oppose only two nominees in its history: Justice
William Rehnquist and former solicitor general and law professor
Robert Bork.

Although her record on the court is mixed on civil liberties, Justice
O'Connor has provided the crucial fifth vote in a number of cases
implicating core civil liberties. For instance, she wrote the opinion
upholding equal opportunity programs and the importance of diversity
in college admissions in Grutter v. Bollinger.

She also wrote the opinion in Hamdi v. Rumsfeld, in which the court
ruled that an American citizen seized overseas as an "enemy
combatant" must be allowed to challenge the factual basis of his or
her detention before an independent arbiter. Affirming the rule of
law even during times of national crisis, O'Connor wrote: "We have
long since made clear that a state of war is not a blank check for
the President when it comes to the rights of the Nation's citizens."

Although the majority opinion in Hamdi is far from perfect, it
remains a strong rebuke of the Bush administration, which had argued
for absolute power to detain American citizens seized overseas in
military custody without charge, trial or access to counsel.

And in Planned Parenthood v. Casey, she broke with Chief Justice
Rehnquist and other opponents of a woman's right to choose by joining
the majority in reaffirming Roe v. Wade.

Looking forward, the ACLU noted that O'Connor's replacement could
directly affect the outcome of some of the most divisive legal
questions facing America today history. The nominee could, for
instance, reverse the court's growing discomfort with the death
penalty; grant the president greater authority to detain Americans
without charge, trial or access to counsel in the name of national
security; and uphold troubling parts of the Patriot Act.

"The nomination battle for O'Connor's replacement comes at a critical
moment for civil liberties," said ACLU Executive Director Anthony D.
Romero. "The stakes could be as high as they were during the Bork
nomination battle of the 1980's."


***********************************

Environment Lawyers Uneasy Over Roberts' Supreme Court Nomination



ENS

Earthjustice Executive Director Buck Parker said that the non-profit
environmental law firm he leads is "concerned that Judge Roberts may
fail to uphold our key environmental safeguards as a Supreme Court
justice."

In a key 2003 environmental case, Rancho Viejo, LLC v. Norton, Judge
Roberts questioned the constitutionality of Endangered Species Act
safeguards, Parker said.

"Roberts's arguments advanced a distorted view of Congressional power
that could threaten to undermine a wide swath of environmental
protections, including the Clean Air Act and the Clean Water Act,"
said Parker.

In another case, Parker said, "Judge Roberts also displayed a
flippant attitude towards preventing the extinction of what he
called `a hapless toad that, for reasons of its own, lives its entire
life in California...'"

In opposing the 2003 nomination of Roberts to the D.C. Court of
Appeals, the Alliance for Justice, which advocates for an independent
judiciary, said Roberts has a record of "limiting the role of federal
courts in protecting the environment."


Environmentalists are concerned that if Judge Roberts joins the
Supreme Court, protection of public lands might be weakened. (Photo
courtesy NFPA)
While Acting Solicitor General, Roberts was the government's lead
counsel before the Supreme Court in Lujan v. National Wildlife
Federation, a case brought against then Interior Secretary Manuel
Lujan Jr. by citizens seeking to enforce environmental protections in
response to the government's decision to open 4,500 acres of public
land to mining.
Members of the National Wildlife Federation asserted that they would
be injured by the government's decision to open the land to mining,
citing recreational activities in which they had engaged and planned
to engage in the future in that area.

Despite express statutory authorization for such suits, however,
Roberts argued that plaintiffs, members of the National Wildlife
Federation, had no right to file the claims, because they had not
presented sufficient proof of the impact of the government's actions
on them to give them standing.

Roberts asserted that the D.C. Circuit, which had granted standing,
had "presum[ed] facts that the parties did not - and perhaps cannot -
allege on their own."

The Supreme Court agreed with Roberts, tightening standing
requirements for federal cases in one of a line of cases making it
harder for plaintiffs to challenge governmental actions detrimental
to the environment, the Alliance for Justice pointed out.

In a 1993 "Duke Law Journal" article, Roberts wrote in support of
Justice Antonin Scalia's majority opinion in the 1992 Supreme Court
case Lujan v. Defenders of Wildlife, which limited citizens' ability
to bring challenges to government actions harming the environment.

In this case, plaintiffs, members of Defenders of Wildlife, had sued
to compel the federal government to consider the potential harms to
endangered species overseas before enacting programs that might
affect those species.

Roberts agreed with Justice Scalia's holding that, in spite of
specific details about plaintiffs' past activities involving those
species and their future plans to engage in similar activities, they
had not presented sufficient evidence to show the injury-in-fact
necessary to obtain standing.

In his private practice, Roberts has argued both for and against
environmental protection.

He submitted an amicus brief on behalf of the National Mining
Association in the 2001 case Bragg v. West Virginia Coal Association.

Citizens of West Virginia who were adversely affected by the practice
of mountaintop removal mining had sued the state, claiming that West
Virginia's issuance to mining companies of permits to extract coal by
blasting the tops off of mountains and depositing the debris in
nearby valleys and streams harmed both the environment and their
homes.


Mountaintop removal allows companies to mine coal. Tons of waste rock
are dumped into valleys below, burying streams. (Photo courtesy MJS)
The defendant West Virginia Coal Association argued that, because of
the way in which the Surface Mining Control and Reclamation Act was
structured, upon the federal government's approval of its plan for
implementing the Act, the state gained complete authority over
decisions in this area, and so was immune from suits by private
citizens.
"To the dismay of environmentalists," wrote the Alliance for
Justice, "three Republican appointees to the Fourth Circuit - Judges
Niemeyer, Luttig, and Williams - agreed, holding that the citizens
could not sue in federal court to challenge West Virginia's issuance
to mining companies of permits."

In another case, however, Roberts represented the Tahoe Regional
Planning Agency, which was defending its development moratorium on a
pristine portion of Lake Tahoe.

"The Senate must fully and independently review this nomination, and
determine whether as a Supreme Court justice, Judge Roberts would
uphold the fundamental laws that protect our public health and
environment," said Parker of Earthjustice.

"Supreme Court justices decide whether to uphold or strike down
environmental laws," Parker said. "The Senate has a duty to ensure
that the next Justice will be committed to upholding these safeguards
and protecting the rights of all Americans.



Quote of Note
"We abuse land because we regard it as a commodity belonging to us.
When we see land as a community to which we belong, we may begin to
use it with love and respect."
-- Aldo Leopold, American environmentalist and author


NOMINAL CHRISTIAN

In his court decisions, Roberts is a nominal Christian, in that he
has consistently on the court represented not the pacifist Jesus, but
the interests of
the military. He is from that subset of Catholics who
call themselves prolife as they facilitate the bombing of Baghdad
babies for billionaires.

http://www.aclu.org
http://www.greenpeace.org
http://www.ufcw.org
http://www.aflcio.org
http://www.ufw.org


INDEPENDENT JUDICIARY REPORT EXAMINES A DEPLORABLE RECORD

http://www.independentjudiciary.com

Judicial Selection Project Report: John Roberts, February 2003
Alliance for Justice 11 Dupont Circle, 2nd Fl. Washington, D.C. 20036
(202) 822-6070
p.1
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
Introduction
John G. Roberts, nominated by President Bush to a seat on the United
States Court of
Appeals for the D.C. Circuit, has a record of hostility to the rights
of women and
minorities. He has also taken controversial positions in favor of
weakening the
separation of church and state and limiting the role of federal
courts in protecting the
environment. The Alliance for Justice opposes his nomination to the
D.C. Circuit.
Although Mr. Roberts is indisputably a very capable lawyer, that
alone does not qualify
him for such a prestigious and critical post. As a group of over 300
law professors stated
in a 2001 letter to the Senate,1 a lifetime appointment to the
federal bench is a privilege
that comes with great responsibility and requires much more. Every
nominee bears the
burden of showing that he or she respects and pledges to protect the
progress made in the
areas of civil rights and liberties, the environment, and Congress'
constitutional role in
protecting the health and safety of all Americans. Mr. Roberts'
record, particularly his
record as a political appointee, argues strongly that he would not do
so.
While working under Presidents Reagan and Bush, Mr. Roberts supported
a hard-line,
anti-civil rights policy that opposed affirmative action, would have
made it nearly
impossible for minorities to prove a violation of the Voting Rights
Act and would have
"resegregated" America's public schools. He also took strongly anti-
choice positions in
two Supreme Court cases, one that severely restricted the ability of
poor women to gain
information about abortion services, and another that took away a key
means for women
and clinics to combat anti-abortion zealots.
Finally, Mr. Roberts is being considered for lifetime tenure on a
court that is only one
step below the U.S. Supreme Court and is acknowledged to be the
second most important
court in the country. His nomination must be considered in light of
the special
significance of that court. Moreover, Judiciary Committee Chairman
Hatch's insistence
on scheduling three controversial Circuit Court nominees, including
Mr. Roberts, for
confirmation hearings on a single day ensured that senators had no
meaningful
opportunity to question Mr. Roberts about his views on a number of
critical issues. The
Alliance for Justice urges the Senate to reject his confirmation.
1 Alliance for Justice letter by law professors to Senate Judiciary
Committee, May 8, 2001.
Judicial Selection Project Report: John Roberts, February 2003
Alliance for Justice 11 Dupont Circle, 2nd Fl. Washington, D.C. 20036
(202) 822-6070
p.2
The D.C. Circuit
The U.S. Court of Appeals for the District of Columbia Circuit is
widely viewed as
second only to the U.S. Supreme Court in influence over law and
policy in this country.
Unlike other regional courts of appeals, the D.C. Circuit has
exclusive jurisdiction over
appeals not only from the D.C. District Court, but also from many
federal tax and
regulatory agencies. It thus establishes precedent in areas such as
labor and workers'
safety laws and environmental protections that affect all Americans
in very significant
ways.
The D.C. Circuit is also viewed as a stepping-stone for nomination to
the Supreme Court.
In recent years, Chief Justice Burger and Justices Scalia, Thomas and
Ginsburg all served
on the D.C. Circuit before elevation to the Supreme Court. Judges
Robert Bork and
Douglas Ginsburg were both judges on the D.C. Circuit when they were
nominated to the
Supreme Court.
As a result of its critical importance, the D.C. Circuit has long
been the target of attempts
by Republican administrations to pack the court with ultra-
conservative ideologues who
will carry out a pro-business, anti-regulatory, Republican political
agenda. President
Reagan appointed eight such judges – Robert Bork, Kenneth Starr,
Stephen Williams,
Douglas Ginsburg, James Buckley, David Sentelle, Laurence Silberman,
and Antonin
Scalia – to the court, and President George H.W. Bush followed with
Karen Henderson
and Raymond Randolph.
The D.C. Circuit currently has twelve authorized judgeships, with
four active Democratappointed
judges, four active Republican appointed judges, and four vacancies.
The
oldest of these vacancies was created on August 31, 1996, when Judge
Buckley assumed
senior status. If President Bush were to fill all of the existing
vacancies on the D.C.
Circuit, Republican appointees would dominate this currently balanced
court. President
Clinton nominated Elena Kagan and Allen Snyder – a well-respected
partner at Hogan &
Hartson, Roberts' law firm – to fill two of the vacancies on the D.C.
Circuit, but neither
was confirmed by the Republican-controlled Senate, thereby preserving
Republicans'
ability to take control of the court. Had Snyder and Kagan been
confirmed, filling the
remaining two vacancies with Republican nominees would have retained
the court's
balance. Instead, confirming both of President Bush's current
nominees will tilt the court
decisively to the right.
Consideration of President Bush's nominees to the D.C. Circuit,
including Mr. Roberts,
must take into account the current close division between Republican
and Democrat
appointed judges on that court and the refusal by Republican senators
to take up President
Clinton's nominees to it. Senators refuse to confirm any ultra-
conservative Bush
nominee to the court who would upset the court's current balance.
Judicial Selection Project Report: John Roberts, February 2003
Alliance for Justice 11 Dupont Circle, 2nd Fl. Washington, D.C. 20036
(202) 822-6070
p.3
Brief Biography
John Roberts is currently a partner at the D.C. law firm of Hogan &
Hartson. He was
born on January 27, 1955 and received a B.A. from Harvard College
(summa cum laude)
and a J.D. from Harvard Law School (magna cum laude), where he was
managing editor
of the Law Review. He clerked for Judge Friendly on the Second
Circuit and for then-
Associate Supreme Court Justice Rehnquist.
Mr. Roberts has a longstanding connection to the Republican Party and
to right-wing
legal organizations. After clerking for Justice Rehnquist, he held
significant positions in
the administrations of Ronald Reagan and the elder President Bush,
where he became
Deputy Solicitor General. In 1992, Bush nominated Roberts for the
U.S. Court of
Appeals for the D.C. Circuit, but his nomination lapsed before it
could be considered.
Mr. Roberts is now a partner at the D.C. law firm of Hogan & Hartson
and is in charge of
that firm's appellate practice, frequently arguing cases before the
U.S. Supreme Court.
He is a member of both the Republican National Lawyers' Association
and the National
Legal Center For The Public Interest. He serves on the Legal Advisory
Council of the
latter group,2 which states as its mission the promotion of "free
enterprise, private
ownership of property, balanced use of private and public resources,
limited government,
and a fair and efficient judiciary," euphemisms for hostility toward
environmental and
worker protections and a commitment to an ultra-conservative, anti-
government legal
agenda, including the confirmation of President Bush's pro-corporate
judges. In addition,
Times, June 7, 2001.




Mr. Roberts states in his Senate Judiciary Committee questionnaire
that he "regularly
participate[s] in press briefings sponsored by the… Washington Legal
Foundation," a
rigidly right-wing legal organization that litigates on behalf of
corporate interests and
wealthy property owners challenging environmental and other
regulations.
Government Service
The Reagan Administration
While working in the Reagan administration, Roberts served as Special
Assistant to
United States Attorney General William French Smith. In 1982, Roberts
was appointed
by President Reagan to the White House Staff as Associate Counsel to
the President,
where he worked under then White House Counsel Fred Fielding3 and
advised the
President on his constitutional powers and responsibilities and those
of the Executive
2 Other Board Members and Legal Advisors of the Center include
prominent conservatives and
Republicans such as: Douglas Kmiec, C. Boyden Gray, Kenneth Starr,
Eugene Meyer, Dick Thornburgh,
and Fred Fielding.
3 At the time Roberts was nominated, Fielding served as the D.C.
Circuit representative on the ABA's
Standing Committee on the Judiciary, would have been in charge of
giving Roberts his "Well Qualified"
rating. Such a role for Roberts' former White House boss would appear
to present a clear conflict of
interest.
Judicial Selection Project Report: John Roberts, February 2003
Alliance for Justice 11 Dupont Circle, 2nd Fl. Washington, D.C. 20036
(202) 822-6070
p.4
Branch generally. Because Reagan chose to shift the choosing of
federal judges from the
Justice Department to the White House, it is possible that Roberts
had some role in the
selection of the President's extremist judicial nominees.
As Special Assistant to Attorney General Smith in the Justice
Department, and as counsel
in the Reagan White House, Roberts compiled a staunch record of
hostility to civil rights.
Documents compiled from a FOIA request suggest that Roberts played a
significant role
in supporting the Reagan Administration's "race-neutral" approach to
combating
discrimination. With regard to remedies for segregated public schools
and employment
discrimination, Roberts advised the Attorney General about the
Justice Department's
disagreement with a U.S. Commission on Civil Rights report, which had
asserted that
mandatory busing and "the fullest use of…affirmative action" were
necessary. Roberts
explained the Department's position that, "the objective of a proper
desegregation
remedy" was simply "the end to official discrimination on the basis
of race,"4 a position
that effectively eliminated much of the government's traditional role
in working to
eradicate the effects of prior discrimination.
After a 1980 Supreme Court decision, Mobile v. Bolden, dramatically
weakaned certain
sections of the Voting Rights Act, Roberts was involved in the
administration's effort to
prevent Congress from overturning the Supreme Court's action. The
Supreme Court had
decided, despite a lack of textual basis for this interpretation of
the statute, that plaintiffs
claiming certain violations of the Voting Rights Act, such as
minority vote dilution, had
to prove that the discrimination was intentional rather than just
having a discriminatory
effect.5 Roberts joined the Administration in opposing the "Section
2" extension of the
Act, strongly supported by both the House and the Republican-
controlled Senate, which
would have reinstated the effects standard. Instead, he participated
in the effort to amend
the extension of the Act so that voting rights plaintiffs would
continue to have to prove
discriminatory intent, a much harder task.6 As the Washington Post
stated:
Opponents of [the effects standard] say this would require courts to
strike
down any voting system that didn't result in proportional
representation.
Not true. It would simply reinstate the standard used by the courts
before
the Supreme Court decision in Mobile v. Bolden, a 1980 case requiring
proof that the drafters of the law in question intended to
discriminate – a
standard that is virtually impossible to meet since the legislators in
question have all been dead for years.7
The Bush Administration
4 Memorandum, John Roberts to Attorney General re Summary of [U.C.
Commission on Civil Rights
Chairman] Flemming Correspondence, October 5, 1981.




5 Mobile v. Bolden, 446 U.S. 55 (1980).
6 Critical portions of the FOIA documents that would show Roberts'
positions on this issue were redacted,
making it impossible to document the actual level and substance of
his influence and involvement.
7 "Voting Rights: Be Strong," Washington Post, January 26, 1982.
Judicial Selection Project Report: John Roberts, February 2003
Alliance for Justice 11 Dupont Circle, 2nd Fl. Washington, D.C. 20036
(202) 822-6070
p.5
During the administration of President George H.W. Bush, Roberts
served as
Deputy Solicitor General. He was the "political deputy" in the
Solicitor General's
office and thus, unlike career Deputy Solicitor Generals, cannot
dismiss positions
he took as simply arguments he was forced to make as part of his
obligation to
zealously represent the interests of his client, the federal
government. While in
the Solicitor General's office during the Bush administration,
Roberts co-authored
briefs in a number of controversial cases.
Environment
First, as Acting Solicitor General, Roberts was the government's lead
counsel before the
Supreme Court in Lujan v. National Wildlife Federation,8 a case
brought by citizens
seeking to enforce environmental protections in response to the
government's decision to
open 4,500 acres of public land to mining activity. Plaintiffs
asserted that they would be
injured by the government's decision to open the land to mining,
citing recreational
activities in which they had engaged and planned to engage in the
future in that area.
Despite express statutory authorization for such suits, however,
Roberts argued that
plaintiffs, members of the National Wildlife Federation, had no right
to file the claims,
because they had not presented sufficient proof of the impact of the
government's actions
on them to give them standing. He asserted that the D.C. Circuit,
which had granted
standing, had "presum[ed] facts that the parties did not -- and
perhaps cannot -- allege on
their own."9 The Supreme Court agreed with Roberts, tightening
standing requirements
for federal cases in one of a line of cases making it harder for
plaintiffs to challenge
governmental actions detrimental to the environment.
Choice
In two cases, Roberts took positions hostile to women's reproductive
rights. He was a
co-author of the government's brief in Rust v. Sullivan,10 the case
in which the Supreme
Court upheld newly revised Title X regulations that prohibited U.S.
family planning
programs receiving federal aid from giving any abortion-related
counseling or other
services. The provision barred such clinics not only from providing
abortions, but also
from "counseling clients about abortion" or even "referring them to
facilities that provide
abortions."11 Roberts' brief argued that the regulation gagging the
government-financed
programs was necessary to fulfill Congress' intent not to fund
abortions through these
programs, despite the fact that several members of Congress,
including sponsors of the
amendment dealing with abortion, disavowed this position and that the
Department of
Health and Human Services' had not previously interpreted the
provision in such a rigid
8 497 U.S. 871 (1990).
9 Lujan v. National Wildlife Federation, 1989 U.S. Briefs 640 at p.1,
Reply Brief for Petitioners, April 6,
1990.
10 500 U.S. 173 (1991).
11 Title X, 42 U.S.C. 300, Section 1008.
Judicial Selection Project Report: John Roberts, February 2003
Alliance for Justice 11 Dupont Circle, 2nd Fl. Washington, D.C. 20036
(202) 822-6070
p.6
and restrictive manner.12 Moreover, Roberts argued, even though the
case did not
implicate Roe v. Wade, that "[w]e continue to believe that Roe was
wrongly decided and
should be overruled… The Court's conclusion in Roe that there is a
fundamental right to
an abortion… finds no support in the text, structure, or history of
the Constitution."13
In a second abortion-related case, Roberts co-authored the
government's amicus brief in a
private suit brought against Operation Rescue by an abortion clinic
it had targeted.14 The
brief argued that Operation Rescue was not engaged in a conspiracy to
deprive women of
equal protection. Roberts took this position in spite of Operation
Rescue's admission that
its goal was to prevent women from obtaining abortions and to shut
down the clinic
during its protests. Although the government's brief acknowledged
that only women
could become pregnant, it argued that conspiring to prevent people
from seeking
constitutionally-protected abortions did not constitute gender
discrimination. It asserted
that, at worst, Operation Rescue was discriminating against pregnant
people, not women.
The brief in Bray also took the additional step of pointing out that
the Supreme Court had
not previously decided whether women were protected from private
conspiracies to
violate their equal protection rights, under the relevant civil
rights statute,and urged the
Court not to reach a decision on this question, rather than arguing
that the Court should
definitively state that women should be afforded protection by the
statute, as was within
the Court's power in this case.
The Supreme Court accepted Roberts' argument in a 5-1-3 decision,
with Justices
O'Connor, Stevens, and Blackmun dissenting. However, Justice Souter,
who concurred
in part with the Court's holding, disdainfully rejected Roberts'
arguments, writing that:
It is also obvious that petitioners' conduct was motivated "at least
in part"
by the invidious belief that individual women are not capable of
deciding
whether to terminate a pregnancy, or that they should not be allowed
to act
on such a decision. Petitioners' blanket refusal to allow any women
access
to an abortion clinic overrides the individual class member's choice,
no
matter whether she is the victim of rape or incest, whether the
abortion




may be necessary to save her life, or even whether she is merely
seeking
advice or information about her options. Petitioners' conduct is
designed to
deny every woman the opportunity to exercise a constitutional right
that
only women possess. Petitioners' conspiracy, which combines massive
defiance of the law with violent obstruction of the constitutional
rights of
12 A 1978 memorandum from the Department of Health and Human Services
stated that, "This office has
traditionally taken the view that… the provision of information
concerning abortion services, mere referral
of an individual to another provider of services for an abortion, and
the collection of statistical data and
information regarding abortion are not considered to be proscribed by
[the regulation at issue]."
Memorandum from Carol C. Conrad, Office of General Counsel, Dep't of
Health, Education & Welfare, to
Elsie Sullivan, ***'t for Information and Education, Office of Family
Planning, BCHS (April 14, 1978).
13 Brief for the Respondent at 13, Rust v. Sullivan, 500 U.S. 173
(1991) (Nos. 89-1391, 1392).
14 Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993).
Judicial Selection Project Report: John Roberts, February 2003
Alliance for Justice 11 Dupont Circle, 2nd Fl. Washington, D.C. 20036
(202) 822-6070
p.7
their fellow citizens, represents a paradigm of the kind of conduct
that the
statute was intended to cover. 15
Civil Rights
Roberts co-authored two briefs on the government's behalf arguing for
court supervision
to be lifted in school desegregation cases. In a 1990 case, the
amicus brief co-authored
by Roberts in his capacity as Deputy Solicitor General sought to
weaken the standard and
limit the timeline for court-enforced desegregation decrees in the
nation's schools.
Roberts argued that Oklahoma City schools, which had been
declared "unitary" in 1977,
could not again be subjected to a desegregation decree in 1985,
despite the school board's
decision to eliminate busing in elementary schools, thus returning a
number of schools
that had previously been desegregated to one-race status.16 In a 5-3
split, with Justice
Souter not yet participating, the Supreme Court held that the board
did not have to remain
under court-ordered supervision, and that it could implement the
proposed change, so
long as the result did not cause a new violation of the Equal
Protection Clause. In a
strong dissent joined by Justices Blackmun and Stevens, Justice
Marshall wrote:
The majority today suggests that 13 years of desegregation was
enough….
Because the record here shows, and the Court of Appeals found, that
feasible steps could be taken to avoid one-race schools, it is clear
that the
purposes of the decree have not yet been achieved and the Court of
Appeals' reinstatement of the decree should be affirmed. I therefore
dissent.17
The next year, the government filed another amicus brief on a case
with substantially
similar facts. It argued that a school system whose racial makeup had
changed due to
demographic shifts in residential patterns allegedly unrelated to
prior discrimination




could not be required to eliminate racial imbalances within its
schools and that the court
could lift a desegregation decree even if not all six factors
for "unitary status" had been
fulfilled.
18 In doing so, it won the Supreme Court's approval to lower the bar
for the
proof that school systems that had previously engaged in de jure
discrimination had to
show in order to obtain the court's revocation of a desegregation
decree.
After acknowledging that the DeKalb County, Georgia school system was
still segregated
and had failed to fulfill several "unitariness" factors – "teacher
and principal assignments,
resource allocation, and quality of education"—the district court
nonetheless removed the
system from supervision, instructing it to remedy the remaining
factors.
19 Plaintiffs, a
group of parents of public school students, sought to ensure the
court's continued
jurisdiction over the schools, which had employed de jure segregation
through 1969, until
they achieved "unitary" status. The Eleventh Circuit granted
plaintiffs' request, reversing
15 Id. at 324 (footnotes omitted).
16 Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991).
17 Id. at 251-2.
18 Freeman v. Pitts, 503 U.S. 467 (1992).
19 Id. at 474 (citing district court decision).
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the district court and holding that a school system that allocated
fewer resources to Black
children and remained segregated had to prove that it had shown total
fulfillment of all
factors of "unitary status" for several years:
School boards violated the Constitution by operating dual systems. To
remedy this violation, they must eliminate all of the dual system's
vestiges…. The factors operate, in part, as an indicator of more
intangible
vestiges…. A school achieves unitary status or it does not. We will
not
permit resegregation in a school system that has not eliminated all
vestiges
of a dual system.20
The Supreme Court reversed, agreeing with the U.S. government's
argument that the
school district may regain control of those factors for which it had
achieved unitary status
and reversing the Eleventh Circuit's order that the court retain
control until several years
of complete unitary status had been completed. Justice Souter,
however, warned in his
concurrence that the remaining "vestiges" – including funding
disparities and trailers at
only the majority-Black schools – could, and often do, contribute to
the "independent"
migration of White families, and thus students, from those school
districts, and that the
district court must continue to monitor the situation to prevent such
resegregation.
Three other Justices – Blackmun, Stevens, and O'Connor – agreed that
the Eleventh
Circuit's decision required a remand but disagreed sharply with the
majority's contention
that the school system had substantially complied, noting the school
system's ability to
influence the residential choices made by White families and the
resulting exiting
disparities and segregation in the system and ordering the lower
court, on remand, to
investigate that issue in making its final decision.
Rights of Criminal Defendants
While in the Solicitor General's office, Roberts co-authored two
amicus briefs arguing
that the Supreme Court should limit the rights of prisoners or
criminal defendants. In
one, he argued that the Ninth Circuit had erred in denying summary
judgment for the
state on a prisoner's claim that the prison violated his Eighth
Amendment rights.21 The
brief asserted that the Ninth Circuit test – which allowed a court to
dismiss an in forma
pauperis complaint only if it could take judicial notice that the
alleged facts did not occur
– was improper. Criticizing what it felt was that court's excessive
leniency toward in
forma pauperis prisoner litigants, the brief quoted an earlier
dissent by Justice Rehnquist,
in which he asserted that, "[t]he potential for abuse of [the in
forma pauperis statute] is
especially acute in the context of suits by prison inmates. Such
individuals not only have
no financial disincentive to mount such claims, but may look upon
bringing suit as a
means to `obtain[] a short sabbatical in the nearest federal
courthouse."22 Roberts' brief
argued that "frivolous" claims could be dismissed if the judge
believed that an attorney
20 Pitts v. Freeman, 887 F.2d 1438, 1446 (11th Cir. 1989).
21 Denton v. Hernandez, 504 U.S. 25 (1992).
22 Brief for amicus curiae United States, Denton v. Hernandez, No. 90-
1846, October Term, 1991, citing
Cruz v. Beto, 405 U.S. 319, 327 (1972) (Rehnquist, J., dissenting).
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p.9
would have refused to file the complaint for fear of being sanctioned
and stated that this
claim was clearly frivolous. The Supreme Court agreed that the
standard set by the Ninth
Circuit was too high and remanded the case for further review with
instructions, however,
that the lower court weigh all facts in plaintiff's favor.
As Acting Solicitor General, Roberts also authored the government's
Supreme Court
brief in Burns v. United States.23 Petitioner William Burns was
convicted of government
theft, attempted tax evasion, and false claims based upon a plea
bargain with the
government under which he would receive a prison sentence of 30-37
months, which was
within agreed-upon guidelines. At Burns' sentencing hearing, however,
the district court
judge sua sponte announced a 60-month sentence. Burns appealed, but
the Court of
Appeals affirmed, finding no language in the Federal Rules mandating
advance notice of
such a decision by the judge. The U.S. Supreme Court granted
certiorari to resolve a
circuit split and reversed.
Under the Federal Rules of Criminal Procedure, a presentence report
must include the
projected range of sentence and any possible basis for deviating from
it.24 The
government argued that the absence of a similar express requirement
for a judge to notify
a defendant of his intent to make an upward departure in sentencing
or his reasons for
doing so demonstrated a legislative intent to exclude this right for
criminal defendants.
The Court disagreed, 5-4, with Justices Blackmun, Stevens, Scalia,
and Kennedy joining
Justice Marshall in stating that:
[I]n our view, it makes no sense to impute to Congress an intent that
a
defendant have the right to comment on the appropriateness of a sua
sponte departure but not the right to be notified that the court is
contemplating such a ruling… Such a reading…renders meaningless the
parties' express right. The Government's construction of congressional
"silence" would thus render what Congress has expressly said absurd.25
First Amendment
Roberts co-authored two briefs arguing for an expanded role for
religion in public
schools. In one case, he co-authored a government amicus curiae brief
before the
Supreme Court, in which he argued that public high schools should be
allowed to conduct
religious ceremonies as part of a graduation program, a position
rejected by the Supreme
Court.26 In the other, the government argued that barring a religious
group from meeting
23 501 U.S. 129 (1991).
24 "The presentence report must: (A) identify all applicable
guidelines and policy statements of the
Sentencing Commission; (B) calculate the defendant's offense level
and criminal history category; (C) state
the resulting sentencing range and kinds of sentences available… (E)
identify any basis for departing from
the applicable sentencing range." Fed. R. Crim. P. 32 (d)(1). (At
that time, (c)(1)).
25 Id. at 135-6 (emphasis in the original). Note that, at the time
this case was heard and decided, Fed. Rule
Crim. Proc. 32(a)(1) mandated that parties be given "an opportunity
to comment upon the probation
officer's determination and on other matters relating to the
appropriate sentence."
26 See Lee v. Weisman, 505 U.S. 577 (1992).
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on school grounds violates the Equal Access Act, while granting
access does not violate
the Establishment Clause.27 The Supreme Court agreed with the
government's position.
In the area of freedom of speech, Roberts co-authored a brief arguing
that the 1989 Flag
Act did not violate the First Amendment.28 Two Americans had been
prosecuted for
burning the U.S. flag in violation of the Act, but both charges were
dismissed on the
grounds that the law violated the First Amendment right to freedom of
speech. The
government's brief argued for the Court to treat flag burning
like "obscene words" and
"defamatory statements" and allow the government to ban it for the
common good,29 but
the Supreme Court disagreed 5-4, holding the statute unconstitutional.
Private Practice
In private practice, Roberts has often represented corporations in
suits against private
individuals or the government. He represented Toyota Motor
Manufacturing, Kentucky,
Inc., in its successful petition to the Supreme Court arguing that a
worker with carpal
tunnel syndrome is not disabled such that she is entitled to
accommodation at work under
the Americans with Disabilities Act.30 Mr. Roberts took the position
that Ella Williams,
an automobile assembly line worker, was not covered by the ADA, even
though she was
fired because carpal tunnel syndrome – which she acquired as a result
of activities she
was required to perform as part of her job – prevented her from doing
all of the tasks
required by her job.
Roberts also served as the attorney for Fox Television, the network
owned by
conservative media mogul Rupert Murdoch, in its challenge of
governmental regulations.
In Fox Television Stations, Inc. v. Federal Communications
Commission, Fox won its
challenge to the federal government's ownership and cross-ownership
rules.31 The D.C.
Circuit held that there was insufficient evidence to uphold the use
of the rule in this case,
given the lack of proof of a potential for monopoly on Fox's part and
the federal
government's imprecise definition of the term "diversity" to justify
its need for the rule.
As counsel for The Associated General Contractors of America, Roberts
wrote an amicus
brief in Adarand Constructors, Inc. v. Mineta,32 arguing in a
challenge to an affirmative
action program for Department of Transportation contractors that
Congress had failed to
make sufficiently specific findings to justify the program. The
Supreme Court dismissed
the case as an improvident grant of certiorari, effectively
preserving the federal program.
In another case, however, Roberts was successful in challenging a
minority preference


program. He again wrote an amicus brief for Associated General
Contractors of
America, who took the side of a contractor challenging the Department
of Defense's
27 Mergens v. Westside Community School District, 496 U.S. 226 (1990).
28 United States v. Eichman, United States v. Haggerty, 496 U.S. 310
(1990).
29 United States v. Eichman, United States v. Haggerty, Brief for the
United States at p.23-4.
30 See Toyota Motor Mfg., Kentucky v. Williams, 534 U.S. 184 (2002).
31 280 F.3d 1027 (D.C. Cir. 2002).
32 534 U.S. 103 (2001).
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p.11
program granting bid preferences to small, minority-owned
businesses.33 Plaintiffs
argued, much as they had in Adarand, that the Defense Department's
program, which
promoted bids from socially and economically disadvantaged
individuals (SDBs), was
unconstitutional because it lacked the evidentiary findings necessary
to support the
implementation of a program with race-based classifications, or,
alternatively, that the
program was not sufficiently tailored to pass constitutional
muster.34 The Federal Circuit
reversed the district court's decision to uphold the statute,
remanding the case to the
lower court with orders that the court conduct further findings and
apply a lesser standard
of deference to Congressional intent.
Roberts' record with regard to his private practice work in
environmental cases is
decidedly mixed. He submitted an amicus brief on behalf of the
National Mining
Association in the 2001 case Bragg v. West Virginia Coal Association.
35 Citizens of
West Virginia who were adversely affected by the practice
of "mountaintop removal" had
sued the state, claiming that West Virginia's issuance to mining
companies of permits to
extract coal by blasting the tops off of mountains and depositing the
debris in nearby
valleys and streams harmed both the environment and their homes.



Defendants argued that, because of the way in which the Surface
Mining Control and
Reclamation Act (SMCRA)36 was structured, upon the federal
government's approval of
its plan for implementing the Act, the state gained complete
authority over decisions in
this area, and it was therefore immune from suits by private
citizens.37 To the dismay of
environmentalists, three Republican appointees to the Fourth Circuit –
Judges Niemeyer,
Luttig, and Williams – agreed, holding that the citizens could not
sue in federal court to
challenge West Virginia's issuance to mining companies of permits.
In another recent case, however, following his nomination to the D.C.
Circuit, Roberts
represented the Tahoe Regional Planning Agency, which was defending
its development
moratorium on a pristine portion of Lake Tahoe.
38 Roberts argued successfully to the
Supreme Court that, in light of landowners' investment-backed
expectations, the actual
impact of the regulation on them, and the public benefit gained from
the regulations, the
moratorium did not constitute a taking that required government
compensation of the
landowners, a decision applauded by many environmental groups.
33 Rothe Development Corporation v. United States Department of
Defense, 262 F.3d 1306 (Fed. Cir.
2001).
34 Because we do not have Roberts' brief in this case, we cannot lay
out with any certainty the arguments
he presented. Given the premise of the case, however, it seems clear
that the brief must have argued
against the use of race in such affirmative action programs. In that
case, Roberts' position here is similar to
that espoused by the Reagan Administration during his time there.
35 248 F.3d 275 (4th Cir. 2001).
36 30 U.S.C. §1201.
37 Since we have not yet obtained Roberts' brief in this case, it is
unclear what exactly he argued. What is
clear is that he sought to protect the right of mining companies to
engage in mountaintop removal and that
he sought to prevent private citizens from suing to bar that practice.
38 Tahoe-Sierra Preservation Council v. Tahoe Regional Planning
Agency, 535 U.S. 302 (2002).
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p.12
One of the American Bar Association's requirements for lawyers is the
performance of
work on behalf of the disadvantaged, and the Alliance considers this
a prerequisite for
any individual seeking a lifetime appointment to the federal bench.
Mr. Roberts has
fulfilled this requirement in his private practice.
Published Writing and Public Statements
As a law student, Roberts authored two law review articles arguing
for the courts to
interpret clauses of the Constitution in ways that would weaken key
worker, consumer,
and environmental protections.39 Interestingly, he advanced
interpretations of both the
Takings and Contracts Clauses that went against long-standing
precedent and explicitly
rejected "plain language," or literal interpretation of the
Constitution's language.
In the first article, Roberts offered his view of the Takings Clause,
which requires that the
government give "just compensation" for takings of "private
property." Roberts claimed
that courts trying to ascertain its meaning, "have not been
significantly aided by the
words of the clause, which are incapable of being given simple, clear-
cut meaning…
Indeed, the very phrase `just compensation' suggests that the
language of the clause must
be informed by changing norms of justice."40 After rejecting on
various grounds several
interpretations of the clause traditionally used by courts – i.e.
physical intrusion onto an
owner's property as anachronistic in a largely non-agrarian
society, "noxious use" as too
value-laden, and Justice Holmes' 1922 "diminution of value" test as
too vague, Roberts
argued for a "constrained" model based on a utility-based test
proposed by Professor
Frank Michelman. Under that model, parties made unwhole or "insecure"
by regulation
should be compensated accordingly.
In his second article, Roberts took on the Contract Clause, which
provides that, "No state
shall… pass any… law impairing the obligation of contracts." Roberts
argued that this
clause should be interpreted to protect corporations from legislation
that might increase
their obligations to their workers, such as pension protection, and
not, as Justice Brennan
had asserted, to protect individuals from decisions by states that
nullified rights by
reneging on contracts.41 Roberts criticized Justice Brennan's plain
language interpretation
of the Contract Clause, arguing instead that, "Constitutional
protections, however, should
not depend merely on a strict construction that may
allow `technicalities of form to
dictate consequences of substance.'"42 Here, as in his Takings Clause
article, Roberts
seems unafraid to reject a "strict construction" approach to
constitutional interpretation to
reach results that favor corporations and wealthy property owners. In
both articles,
Roberts' non-literal interpretation of the clause seems to fly in the
face of President
Bush's pledge to nominate judges who would strictly interpret the
law, not make it.
39 Mr. Roberts has written numerous other, less controversial
articles, which are not summarized here.
40 "The Takings Clause," Developments in the Law – Zoning, 91 Harvard
Law Review 1462, 1464 (1978).
41 Comment, "Contract Clause – Legislative Alteration of Private
Pension Agreements," 92 Harvard Law
Review 86 (1978).
42 Id at 91 & n.37 (1978) (quoting United States v. Central Eureka
Mining Co., 357 U.S. 155, 181 (1958)
(Harlan J., dissenting)).
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In a 1993 Duke Law Journal article, Mr. Roberts wrote in support of
Justice Scalia's
majority opinion in the critical 1992 Supreme Court case Lujan v.
Defenders of
Wildlife,43 which significantly limited citizens' ability to bring
challenges to government
actions harming the environment.44 In this case, plaintiffs, members
of Defenders of
Wildlife, had sued to compel the federal government to consider the
potential harms to
endangered species overseas before enacting programs that might
affect those species.


Roberts agreed with Scalia's holding that, in spite of specific
details about plaintiffs' past
activities involving those species and their future plans to engage
in similar activities,
they had not presented sufficient evidence to show the injury-in-fact
necessary to obtain
standing.
Recent statements by Roberts prior to his nomination also serve to
belie assertions by the
Bush Administration and other supporters that he is not an extremist
and would not act as
an ideologue if confirmed to the federal bench. When asked in 2000
for his opinion of
the Rehnquist Supreme Court, which has been characterized by many
legal scholars as
the most right-wing and activist in decades,45 Roberts stated, "I
don't know how you can
call [the Rehnquist] court conservative . . . ."46 And when asked
specifically about the
1999-2000 Supreme Court term, a term in which the Court rendered
numerous highly
controversial decisions,47 Roberts said that "[t]aking this term as a
whole, the most
important thing it did was make a compelling case that we do not have
a very
conservative Supreme Court . . . ."48
Had Roberts been asserting that the Court was not "conservative" in
the traditional sense
of the word – i.e. granting due deference to Congress and prior
caselaw and maintaining
the status quo to the extent possible – then his assertion would seem
quite credible, given
the striking number of laws the Court has overturned and precedents
it has reversed.
However, it seems clear that Roberts meant that, in his view, the
Supreme Court was not
particularly right-wing, an astonishing assertion in light of the
Court's recent activism.
Roberts' assertion that the current Rehnquist Court is not very
conservative raises serious
concerns about the extreme positions he might take if confirmed to
the bench.
Conclusion
43 112 S.Ct. 2130 (1992).
44 "Comment: Article III Limits on Statutory Standing," John G.
Roberts, Jr. 42 Duke L.J. 1219, April,
1993.
45 This is the Court that the New York Times recently termed "William
Rehnquist's archconservative
Supreme Court," Cohen, Adam, "Hell Hath No Fury Like a Conservative
Who Is Victorious," November
24, 2002, and about which the National Journal noted that, no matter
whom Bush appointed to fill
Rehnquist's seat, should he retired, he would be unlikely to be able
to shift the court further to the right
than it already is. "Bush and the Supreme Court: Place Your Bets,"
Taylor, Stuart, November 16, 2002.
46 Lyle Denniston, "High court's recent rulings, future are campaign
issues" Baltimore Sun, July 2, 2000.
47 For example, striking down a critical portion of the Violence
Against Women Act in U.S. v. Morrison,
529 U.S. 598 (2000) and making it substantially more difficult for
victims of age discrimination to make a
successful claim in Kimel v. Florida Board of Regents, 528 U.S. 62
(2000).
48 David Jackson, "Conservative Drive to Remake Supreme Court Hits
Some Speed Bumps This Term"
Dallas Morning News, July 1, 2000.
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p.14
John Roberts' legal career and professional writings reveal that he
is out of the
mainstream in his legal views in a number of areas, most prominently
civil rights and the
right to choose. His record as a member of the Bush and Reagan
administrations reflects
opposition to the rights of women and minorities, as well as a
restrictive view of the
proper role of federal courts in protecting the environment and the
rights of criminal
defendants. His comments about the Rehnquist Court reveal Roberts'
extremist ideology,
a view confirmed by his membership in and connections to ultra-
conservative legal
groups.
Mr. Roberts has been nominated to a federal court with tremendous
influence. The
Washington Times said of the nomination of Roberts (along with that
of Miguel Estrada)
to the D.C. Circuit that it, "offer[s] business the best opportunity
in years to free itself
from government regulations…. A victory for conservatives on the
appellate court could
cut deeply into the aspirations of environmentalists, labor groups,
and other social
activists. They depend on federal regulations to carry out their
advocacy efforts."49 The
Senate was denied the opportunity to question Roberts fully about his
record and his
views at his recent hearing. The Alliance for Justice opposes his
nomination.
49 Tom Ramstack, "Bush Appointees Good for Business; Could Tip
Balance on D.C. Circuit," Washington

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