The Supreme Court Shortlist
The views of the likely candidates.
Updated Friday, July 1, 2005, at 11:34 AM
Joined a unanimous opinion denying the claim of a prisoner who argued that by tightening parole rules in the middle of his sentence, the government subjected him to an unconstitutional after-the-fact punishment. The panel reversed its decision after a Supreme Court ruling directly contradicted it. (Fletcher v. District of Columbia, 2004)
For Bush I, successfully helped argue that doctors and clinics receiving federal funds may not talk to patients about abortion. (Rust v. Sullivan, 1991)
Concurring in a decision allowing President Bush to halt suits by Americans against Iraq as the country rebuilds, Roberts called for deference to the executive and for a literal reading of the relevant statute. (Acree v. Republic of Iraq, 2004)
In an article written as a law student, argued that the phrase "just compensation" in the Fifth Amendment, which limits the government in the taking of private property, should be "informed by changing norms of justice." This sounds like a nod to liberal constitutional theory, but Roberts' alternative interpretation was more protective of property interests than Supreme Court law at the time.
Age: 58 Graduated from: University of Texas School of Law. He used to be: a Marine captain, a Texas trial judge, a U.S. District Court judge in the Western District of Texas. He's now: a judge on the U.S. Court of Appeals for the 5th Circuit (appointed 1991).
His confirmation battle: Garza would be the first Hispanic Supreme Court justice since Benjamin Nathan Cardozo in the 1930s, making him harder for liberal groups to oppose. His lengthy record on the bench is conservative. One exception: Garza has expressed some concern about the Texas death penalty, which in recent years has come under repeated scrutiny by the Supreme Court. Still, he usually affirms lower-court decisions approving executions.
Civil Rights and Liberties
Agreed with a decision by the 5th Circuit as a whole to reverse a ruling in favor of the father of a 14-year-old girl who sued a Texas school district on a civil rights violation after his daughter was kept after school by her teacher and then raped in an empty classroom. The court found that schools do not have a constitutional duty to protect students, who, unlike prisoners and mental patients, return home each day. (Doe v. Hillsboro Independent School District, 1997)
Dissented from an earlier decision finding that a 15-year-old girl whose teacher had sex with her had a winning civil rights claim, on the theory that schoolchildren have a liberty interest in their bodily integrity. Garza's dissent argued that the school district was not liable because the state did not authorize the teacher's behavior. He joined in another dissent noting that the girl "was of sufficient age to bear children" and arguing that it was not clearly established that she was "sufficiently immature" to warrant a finding that she'd been sexually abused by the sex with her teacher. (Doe v. Taylor Independent School District, 1994)
Over a dissent, wrote for the 5th Circuit as a whole in rejecting the civil rights claims of a mother who was arrested and handcuffed for not wearing a seatbelt, not fastening her children's seatbelts, driving without a license, and not providing proof of insurance. The opinion found that the police had probable cause to arrest the mother and did not conduct the arrest in an extraordinary manner. (Atwater v. City of Lago Vista, 2000)
Environmental Protection and Property Rights
Over a dissent, wrote for the 5th Circuit as a whole in rejecting a suit by environmental groups challenging a U.S. Forest Service policy of clear-cutting in the Texas forests. Held that, because the groups were challenging the forest service's general practices, the court could not grant them relief. (Sierra Club v. Peterson, 2000)
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.