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What to Expect from John Roberts

By Burton H. Wolfe  Posted by Rob Kall (about the submitter)     Permalink
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When I set about the task of compiling and analyzing the opinions written or joined in by John Roberts as he sat on the D.C. Circuit Court of Appeals, I hoped to present a string ranging from the time he took the seat in 2003 to just before the recent confirmation proceedings before the U.S. Senate Judiciary Committee. Because I became bogged down in other tasks, I only got three parts done. I have them saved in my stored messages, and if anyone wants to read them I will be glad to transmit them via e-mail. Though I am now abandoning that project, I hope I succeeded in conveying some messages convincingly enough so that everyone in a position to help advance them will be induced to do so: The media is failing to provide coverage of the courts. Thousands of opinions that critically affect every U.S. citizen are rolling out of the courts, opinions that govern our lives just as much as laws passed by legislative bodies do and sometimes even more so. Because they go unreported, the public remains ignorant of what is affecting them and how.

The need to correct that failure of the media becomes especially important where there are elections of judges in lieu of appointments. Since the media fails to report opinions of the candidates, or only reports a few and in the unqualified, distorted manner you saw in the coverage on Roberts, the public cannot vote in an intelligent and informed manner on who should be placed on a municipal or state court. That factor would also become important if somehow the Congress is convinced to make selections for all court positions elective, including selections for the U.S. Supreme Court, instead of leaving it to the party in power to decide, since that comprises an obvious obliteration of the purported separation of powers between the legislative and judicial branches of government. (There are other ways of deciding who gets to sit on state and federal courts, and I hope to be discussing those in the future.)

Now that Roberts has taken his seat as Chief Justice of the U.S. Supreme Court, here is what you can expect from him; and please understand that my own views are unrelated to what follows.

On Capital Punishment
Maybe you noticed that the question of how Roberts would rule on pending challenges to the death penalty was not raised by the members of the Judiciary Committee. That is because capital punishment is such a volatile subject that the senators wanted to avoid it even more than Roberts did.

When challenges to the death penalty come before the U.S. Supreme Court, expect Roberts to reject arguments that it constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and that because it is applied unequally to disparate groups it violates the equal protection of law clause of the Fourteenth Amendment. There is some very slim chance, depending on how far he pushes federalism, that he will agree with the argument that use of the death penalty must be applied equally in all of the 50 states, and that since there are a dozen states (or whatever the accurate number is) that have abolished it, on that basis it comprises unequal protection of the law. How likely is it that he will accept that argument? I would say the chance, on a scale of 100, is one. This is a man who is so lacking in sympathy for criminals and who is such a law and order type of judge that I cannot see him voting to strike down the death penalty on any grounds. Also, he is such a traditionalist that he will accept the validity of the death penalty on the basis of its historical use, and he will reject the kind of social evolution view that has been advanced by judges who take the position that as society's attitudes change the judicial branch of government in turn adapts its way of dealing with the law so that past history is not determinative. Roberts is going to take note in any opinion on the death penalty that polls consistently show that around 75 percent of the public supports capital punishment, and for that reason, too, there is no reason for the U.S. Supreme Court to reinstate the kind of opinion its majority reached in Furman v. Georgia (1972) striking down the states' death penalty statutes on Eighth Amendment and other grounds.

On Abortion
The fear that Roberts will opt to strike down Roe v. Wade is unfounded. In a nearly unbroken string of opinions since 1891, the U.S. Supreme Court has held that there is a right under the Constitution to privacy - referring at different times to the First, Fourth, Fifth, and Fourteenth Amendments as securing the right. Being familiar with the law written in all of those opinions, Roberts the traditionalist can be expected to take the view that the decision on whether or not to abort a pregnancy must be left to the woman who is with child.

On the other hand, expect Roberts to support any federal or state law requiring a female under the age of 18 (or whatever age line may be drawn), and the female's physician, to obtain permission from her parents to abort a pregnancy.

Whether or not he will accept differences in states' laws on this or any other subject depends, again, on whether or not he turns out to be a judge who places federalism above states' rights. At this point there is no way to tell how heavily he will rest on one position or the other.

On the Separation of Church From State
Though I am a member of Americans United for Separation of Church and State, I do not share the vigorous opposition to Roberts which that organization mounted, based on the fear that Roberts will try to break down the wall barring fanatic followers of some form or other of religious belief from imposing their views or "values" either through religion-based legislation or by other means. Because the U.S. was founded basically on the separation of church from state, notwithstanding the right provided in the First Amendment to freedom of religion, I do not believe that Roberts will write any opinion that supports an attempt to interject the principles of a religion into the affairs of state. When the debate over whether or not "under God" should be allowed in the pledge of allegiance returns to the U.S. Supreme Court (it was dismissed on the ground that the petitioner lacked standing to advocate but the petitioner has now corrected that jurisdictional problem), expect Roberts to surprise a lot of people by ruling that the interjection of "God" into a pledge that public school children are obligated to repeat violates the rights of Americans who do not believe in "God."

I do not see Roberts allowing whatever form of "Christianity" he practices to interfere with his positions on law and constitutional rights. On the other hand, I think he will uphold the rights of cities and states to use public funds for support of schools or organizations run by religion groups. Americans United is vehemently opposed to such use of public funds (and so am I). But with developments such as political leaders you would expect to take separation of power positions sponsoring a bill to give a Catholic organization $10 million to reconstruct and save historic missions, or supporting public funding of parochial schools, etc., Roberts can be expected to rule that given broad public support there is no violation of the Constitution. (He will be wrong, but that is the way he will rule.)

On 'Same Sex Marriage'
"Marriage" is defined in dictionaries and law as the union between a man and a woman. Even though a few states have begun to recognize a union between two persons of the same sex as the road to possible consecration of the relationship as a "marriage," expect Roberts to try to overturn any state law legalizing "same sex marriage." Whether on the basis of any "Christian" belief he holds or not, he is going to find it absurd, as millions of Americans do, for a union of two persons of the same sex to be considered a "marriage." Though he will find that homosexuals enjoy all other rights under law, he can be expected to write an opinion (whether it is the majority opinion or a dissent remains to be seen) holding that mating homosexuals have no right to recognition that a legalized "marriage" between them exists.

On White-Collar Crime
Because Roberts is a Republican and it seems that Republican politicians and judges alike advocate extreme leniency toward big business, there are fears that Roberts will write opinions overturning harsh punishment for corporate executives. But as I demonstrated in my analysis of his appellate court opinions as far as I took them, he is not apt to let his Republican or big business connections (whatever those may be) get in the way of upholding strict punishment for white-collar criminals, though it may very well be considerably less harsh than punishment for blue-collar criminals. This is a man who believes passionately in law and who despises criminals of any stripe. On the other hand, you can expect his stance on corporations' freedom to operate as they wish, another touchy subject avoided by senators who draw the largest part of their campaign money from corporate wealth, to be quite different.

On the Concentration of Wealth
As anyone who is not a hermit or who never reads a newspaper knows, the concentration of wealth in the U.S. keeps on escalating. There is merger after merger, to the point that the public is no longer able to recognize who owns what. One corporation now owns a hundred and one other corporations. The money supply is increasingly under control of fewer and fewer banks. There are more and more combined trusts and interlocking directorships. How will Roberts view lawsuits against the growing monopolism, lawsuits such as those under the Sherman Antitrust Act? Expect Roberts to lean over backwards to the point of reverse salaaming to corporations' freedom to operate as they see fit, explaining that this is a socio-economic issue and it is up to government to regulate it, not the courts, unless it can be shown that the concentration at issue is causing extraordinary damage to other businesses or to the public.

On Civil Rights Generally
Do not expect Roberts to be a strong champion of civil rights. On the other hand, the fear that he will take every measure possible to weaken them is unfounded. Each civil rights position he takes will depend on the area involved. In the area of crime, defense attorneys who try every trick possible to get lawbreaking clients off by arguing procedural deficiencies will be out of luck with Roberts. If you read my summary and analysis of how he dealt with a lawbreaking homeland security official whose attorney tried to rest on technicalities, you know what he is going to be like. (Request it from me if you wish.) Roberts' attitude in cases entailing offenses, to put it in a vulgar way, is going to take shape as "civil rights for lawbreakers be damned." On the other hand, given a case such as whether or not it is illegal to burn an American flag as a protest, so-called "conservatives" (whatever that term may mean) are going to be as disappointed in Roberts as they have been in Justice Kennedy. Expect Roberts to rule that burning the flag as a form of protest is freedom of expression protected by the First Amendment, though he will add it must be done in a way that does not cause damage to property or endanger life.

On 'Minorities' and 'Affirmative Action'
It is becoming more and more difficult in the U.S. to determine what a "minority" is and why any given "minority" member should be accorded "affirmative action": i.e., placement ahead of others, regardless of qualifications, on the basis of being a member of a "minority." In California, white persons of European descent have become the "minority" as Asians and Hispanics continue to outpopulate them. Regardless of who and what the subjects are, expect Roberts to join Clarence Thomas in an effort to undermine "affirmative action" as a valid apparatus in determining eligibility for any kind of job or position. If you want to see an example of the way Roberts thinks on the subject of rights involving "minorities," go to a public law library and look up City of Roseville v. Norton, 348 F. 3d 1020 (D.C. Cir. 2003). Roberts did not write the opinion, but he concurred in it.

In the City of Roseville case, a majority community of whites were up in arms over the government's allowing a small group of Indians to take over nearby property for a gaming site. You can believe that Roberts was in sympathy with their fears that the result would be an increase in crime, noise, traffic, and the like. He concurred in the opinion that the Indians must be allowed to take the property, however, under intersecting statutes authorizing recognition of even a small group as an Indian tribe and, following such recognition, the right of the tribe to creation of a new reservation. Under the statutes, the opinion reads, the Secretary of the Interior does not have to decide whether or not the rights granted to the Indian tribe, however small (just 250 persons in this case), will be detrimental to nearby cities. The only question to be determined is whether or not the Indians as a group, no matter how small, enjoy existing statutory rights. If you read beyond the printed words, as I do, you will find Roberts thinking, as he does time and again, that if citizens want to protect themselves against the various types of encroachments on their communities which seem to grow more and more deleterious in this decaying nation, in many if not most instances they are going to have to push for changes in laws that are impacting adversely on them rather than look to the courts for help.

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