The Supreme Court Shortlist
The views of the likely candidates.
Updated Friday, July 1, 2005, at 11:34 AM
Stayed a district court's judgment invalidating Virginia's ban of so-called partial-birth abortion on the theory that the law was constitutional. The Supreme Court later disagreed by a vote of 5-4. (Richmond Medical Center for Women v. Gilmore, 2000)
Age: 50 Graduated from: Harvard Law School. He clerked for: Judge Henry Friendly, Chief Justice William Rehnquist. He used to be: associate counsel to the president for Ronald Reagan, deputy solicitor general for George H.W. Bush, partner at Hogan & Hartson. He's now: a judge on the U.S. Court of Appeals for the D.C. Circuit (appointed 2003).
His confirmation battle: Roberts has been floated as a nominee who could win widespread support in the Senate. Not so likely. He hasn't been on the bench long enough for his judicial opinions to provide much ammunition for liberal opposition groups. But his record as a lawyer for the Reagan and first Bush administrations and in private practice is down-the-line conservative on key contested fronts, including abortion, separation of church and state, and environmental protection.
Civil Rights and Liberties
For a unanimous panel, denied the weak civil rights claims of a 12-year-old girl who was arrested and handcuffed in a Washington, D.C., Metro station for eating a French fry. Roberts noted that "no one is very happy about the events that led to this litigation" and that the Metro authority had changed the policy that led to her arrest. (Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004).
In private practice, wrote a friend-of-the-court brief arguing that Congress had failed to justify a Department of Transportation affirmative action program. (Adarand Constructors, Inc. v. Mineta, 2001).
For Reagan, opposed a congressional effort—in the wake of the 1980 Supreme Court decision Mobile v. Bolden—to make it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act.
Separation of Church and State
For Bush I, co-authored a friend-of-the-court brief arguing that public high-school graduation programs could include religious ceremonies. The Supreme Court disagreed by a vote of 5-4. (Lee v. Weisman, 1992)
Environmental Protection and Property Rights
Voted for rehearing in a case about whether a developer had to take down a fence so that the arroyo toad could move freely through its habitat. Roberts argued that the panel was wrong to rule against the developer because the regulations on behalf of the toad, promulgated under the Endangered Species Act, overstepped the federal government's power to regulate interstate commerce. At the end of his opinion, Roberts suggested that rehearing would allow the court to "consider alternative grounds" for protecting the toad that are "more consistent with Supreme Court precedent." (Rancho Viejo v. Nortion, 2003)
For Bush I, argued that environmental groups concerned about mining on public lands had not proved enough about the impact of the government's actions to give them standing to sue. The Supreme Court adopted this argument. (Lujan v. National Wildlife Federation, 1990)
Joined a unanimous opinion ruling that a police officer who searched the trunk of a car without saying that he was looking for evidence of a crime (the standard for constitutionality) still conducted the search legally, because there was a reasonable basis to think contraband was in the trunk, regardless of whether the officer was thinking in those terms. (U.S. v. Brown, 2004)
David Newman is a contributing editor at Legal Affairs.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.
Photographs of: Michael J. Luttig courtesy of Michael J. Luttig; John Roberts by Mark Wilson/Newsmakers; Emilio Garza courtesy of Emilio Garza and the United States Courts 5th Judicial Circuit; Michael McConnell courtesy of the United States Courts 10th Judicial Circuit; Alberto Gonzales by Joe Raedle/Getty Images; J. Harvie Wilkinson III courtesy of J. Harvie Wilkinson III; Edith Brown Clement courtesy Edith Brown Clement and the United States Courts 5th Judicial Circuit; Samuel Alito courtesy of Samuel Alito. Photograph of the Supreme Court chambers on the Slate home page by Dennis Brack.