The Magazine

Reading Roberts's Mind

From the August 1, 2005 issue: He'll certainly be better than O'Connor. But how much better?

Aug 1, 2005, Vol. 10, No. 43 • By TERRY EASTLAND
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SO, JUST WHO IS John G. Roberts? His brainpower, legal experience, and character duly recognized, what is his judicial philosophy? What is his approach to judging--to interpreting and applying the Constitution and other federal law? What kind of jurist will he turn out to be--20, 30 years hence?

One place to look for the answer is in Roberts's record as a federal circuit judge. Appointed two years ago to the U.S. Court of Appeals for the D.C. Circuit, Roberts has participated in some 200 decisions and 100 orders. Of the 200 decisions, almost all were unanimous, according to a review by Anisha Dasgupta and Brian Fletcher (posted at Roberts wrote the majority opinion in about 40 cases, drawing very few dissents. He also wrote three concurrences and two dissents.

Most of his cases involved technical questions of administrative law and proved relatively noncontroversial. He has yet to sit on a big social-issue case--one involving, say, abortion, same-sex marriage, or establishment of religion. Perhaps his case of most national significance is Hamdan v. Rumsfeld, in which he and two other judges voted to affirm the validity of military commissions under the 2001 congressional resolution authorizing the president to "use all necessary and appropriate force" against al Qaeda, and to uphold the president's judgment that the Geneva Convention does not apply to members of al Qaeda. Some of Roberts's writing is notable.

In a case holding that the Drug Enforcement Administration had wrongly blocked the importation of ephedrine, which is used to treat asthma, Roberts, in a concurrence, took issue with the majority's reasoning. Arguing for a narrower and "effectively conceded basis" for disposing of the case, he invoked "the cardinal principle of judicial restraint--if it is not necessary to decide more, it is necessary not to decide more." Regarding the majority's rationale, he said, "I cannot go along for that gratuitous ride."

Roberts dissented from a decision holding that the secretary of labor went beyond her statutory authority by issuing certain reporting obligations for labor organizations. Contending that the congressional delegation of authority was broad enough to encompass the secretary's action, Roberts chided the majority for applying "the very antithesis of deferential review."

Roberts wrote for a unanimous panel upholding a lower court judgment that the arrest, search, handcuffing, and detention of a 12-year-old girl for eating a single French fry in a Washington Metrorail station did not transgress the Fourth and Fifth Amendments. Roberts began his opinion, "No one is very happy about the events that led to this litigation," noting that the district court described the policies leading to her arrest as "foolish" and that indeed the policies were changed after "those responsible endured the sort of publicity reserved for adults who make young girls cry." But foolish policies were not necessarily unconstitutional. "The question before us," he wrote, "is not whether these policies were a bad idea but whether they violated" the Constitution, and "we conclude they did not."

Roberts dissented from his court's refusal to rehear a panel decision on the scope of the commerce clause. At issue was a judgment upholding an order of the Fish and Wildlife Service as a constitutional regulation of interstate commerce. The agency told a developer that it must remove a fence from its own property in order to accommodate the movement of arroyo toads. Roberts faulted the panel's decision for failing to ask--as he said it should have under recent Supreme Court precedents--whether the movement of a toad, a seemingly noncommercial activity that occurs entirely within the state of California--can be said to be interstate commerce. "The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce . . . among the several States.'" Roberts also noted that the panel's decision was in conflict with another ruling in the circuit, making it doubly necessary for the full court to take up the case.