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U.S. Supreme Court

Odd cases reflect on nominee's philosophy

Is Supreme Court nominee John G. Roberts Jr. a tough upholder of blind justice or an eminently balanced judge?

By BILL ADAIR and ANITA KUMAR
Published July 21, 2005

WASHINGTON - In searching for clues about the judicial philosophy of Supreme Court nominee John G. Roberts Jr., legal experts and interest groups are focusing on cases involving toads and a french fry.

The french fry dispute was about a 12-year-old girl arrested for eating a single fry on Washington's subway system, which did not allow customers to eat. Roberts said he disliked the fact the girl was arrested, but said, essentially, the law is the law.

The other case involved a developer that wanted to build homes but was required to remove a fence because endangered toads lived in the area. Roberts was one of two judges on the District of Columbia Circuit Court of Appeals who wanted the court to take a second look at the case.

In other cases, Roberts supported police trunk searches even when officers did not assert evidence of a crime; he helped clear the way for the Pentagon to resume trials for detainees at Guantanamo Bay; and he supported the policy of Vice President Dick Cheney's energy task force keeping its records secret.

Roberts has ruled on relatively few big issues in his two years on the bench because of his junior status and the D.C. court's heavy caseload involving federal agencies. With such slim pickings, interest groups have seized on a handful of cases.

"We have very serious concerns about him," said Judith Schaeffer, deputy legal director for the liberal group People For the American Way. "The record that is known is very troubling."

But legal experts cautioned against reading too much into those rulings because of the narrow scope of appellate cases and because a single opinion may not reflect a judge's feelings.

Writing for himself and two other judges, Roberts upheld the arrest of a 12-year-old girl who was handcuffed by transit police for eating the fry.

"No one is very happy about the events that led to this litigation," Roberts wrote in Hedgepeth vs. Washington Metropolitan Area Transit Authority in October 2004.

"A 12-year-old girl was arrested, searched and handcuffed. Her shoelaces were removed and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted and detained until released to the custody of her mother, some three hours later - all for eating a single french fry in a Metrorail station."

But he wrote that the case was not about whether the policy was a good idea but whether her constitutional rights were violated.

Liberal groups say he was wrong to side with the police. "The tone of that ruling does portray an insensitivity to the excessive use of police power," Schaeffer said.

But attorneys affiliated with the Republican-leaning group Progress for America said the ruling was an appropriate way for Roberts to apply a poorly written law. "The law may not have made a lot of sense," said Republican lawyer Barbara Comstock, but Roberts "was going to enforce the law."

The U.S. Fish and Wildlife Service had ordered a developer to remove a fence so the toads could move freely. In Rancho Viejo vs. Norton, a three-judge panel upheld the decision, as did a full panel. Roberts dissented.

He wanted the court to give the developer another chance to argue that the Constitution did not permit the government to regulate activity affecting "a hapless toad" that "for reasons of its own lives its entire life in California."

Liberal groups said his ruling suggests that he might find the Endangered Species Act to be unconstitutional and might oppose a host of other federal laws. "The judiciary committee needs to see if this one case is representative of his philosophy," said Adam Shah, senior counsel at the liberal group Alliance for Justice.

But Ben Ginsberg, a Republican lawyer supporting Roberts, said the toad and french fry cases indicate Roberts' disciplined philosophy of ruling within the law.

"In some cases, the horny toads win and in some cases they don't," said Ginsberg. "In some cases, the french fries win, and in some cases they don't."

Roberts, one of 10 judges on the appellate court, has heard about 100 cases since he was appointed in June 2003, often in panels with two other judges.

He has written about 40 opinions - none highly controversial - often siding with the Bush administration.

He dissented from a preliminary decision against the Bush administration's efforts to keep secret records of Cheney's energy task force.

He joined in the decision to throw out a $959-million judgment for U.S. prisoners of war who say they were tortured by the Iraqi military during the 1991 Gulf War, ruling that Congress never authorized such lawsuits against foreign governments.

He was part of the unanimous panel that said the Bush administration could conduct war crimes trials for suspected terrorists detained at Guantanamo Bay. University of Chicago law professor Dennis J. Hutchinson says Roberts does not include his personal opinions and sticks to the law. "He is extremely careful, fair to both sides, and lucid in explaining his reasons."

Eddie Lazarus, a former clerk on the Supreme Court, said the record is so sketchy that the Senate needs to look deeper and ask him about his philosophy.

Democrats "are trying to read way too much into what we have. On the other hand, the Republicans are saying he is a super smart guy and a really nice guy - as if that's enough."

Times researcher Caryn Baird contributed to this report

For the complete french fry opinion: pacer.cadc.uscourts.gov/docs/common/opinions/200410/03-7149a.pdf

For the complete toad case opinion: pacer.cadc.uscourts.gov/docs/common/opinions/200307/01-5373b.pdf

Court nominee John Roberts' legal career included a stint at the Justice Department as principal deputy solicitor general during the administration of President Bush's father and 13 years in private practice. Here are some positions he has taken during those stops in his legal career:

JUSTICE DEPARTMENT:

Roberts helped write a 1990 Supreme Court brief in Rust vs. Sullivan that said, "We continue to believe that Roe (vs. Wade) was wrongly decided and should be overruled." The court did not address that issue, but sided with the Justice Department in ruling that doctors and clinics receiving federal funds could not talk to patients about abortion.

Arguing for former President George Bush's administration, Roberts asked the Supreme Court to rule that public schools could sponsor prayer at graduation ceremonies. "We do not believe that graduation ceremonies pose a risk of coercion," said the brief Roberts helped write.

In 1990, Roberts co-wrote a brief seeking to limit a school district's exposure to court-enforced school desegregation decrees. Roberts said Oklahoma City schools could not again be subjected to a desegregation decree. The schools had been declared desegregated in 1977.

In 1991, Roberts argued that schools in DeKalb County, Ga., could not be required to eliminate racial imbalances when racial makeup had changed due to demographic shifts allegedly unrelated to prior discrimination.

Roberts co-wrote a brief that said prohibiting a religious group from meeting on school grounds violates the Equal Access Act and that granting access does not violate the Establishment Clause of the Constitution.

Roberts also argued that the National Wildlife Federation had no right to file claims seeking to enforce environmental protections on 4,500 acres of public land opened to mining activity.

In the area of prisoners' rights, Roberts said a court test was improper that allowed an indigent inmate's complaint to be dismissed only if a court took judicial notice that the alleged facts in the case did not occur. The Supreme Court agreed that the standard was too high.

PRIVATE PRACTICE:

Roberts helped write a brief for the U.S. Chamber of Commerce in favor of pre-emption, the legal concept that bars lawsuits in state courts in some instances.

On behalf of Toyota, Roberts argued that the Americans with Disabilities Act did not require the automaker to provide a workplace accommodation to a worker with carpal tunnel syndrome.

Arguing for Fox Television Stations Inc., Roberts said the company was not subject to ownership rules aimed at preventing monopolization.

Representing the Associated General Contractors of America, he said Congress failed to make sufficiently specific findings to justify an affirmative action program for contractors at the Department of Transportation.

In a court brief, Roberts argued against a Defense Department program granting bid preferences to minority-owned businesses.

For the National Mining Association, Roberts argued that the sovereign immunity doctrine should trump a challenge by West Virginia citizens to state permits for environmentally damaging mining practices.

Roberts represented the Tahoe Regional Planning Agency in defending a development moratorium.

- ASSOCIATED PRESS

[Last modified July 21, 2005, 00:57:10]