Swing State Project

Memorandum

            John Roberts has enjoyed a distinguished career in government service, private practice and, most recently, as a federal judge.   He is a graduate, summa cum laude, of Harvard College and also Harvard Law School (magna cum laude).  After law school, he clerked for Judge Henry Friendly on the U.S. Court of Appeals for the Second Circuit and then-Associate Justice William Rehnquist on the U.S. Supreme Court.  

            Roberts has had a distinguished career as a public servant.  He served in several positions in the Reagan administration, including Associate White House Counsel.  He also served, from 1989-93, as the Principal Deputy Solicitor General, the government’s second highest ranking lawyer before the U.S. Supreme Court.  

            After leaving government, Roberts became known as one of the top Supreme Court advocates in the country as a partner at Hogan & Hartson in D.C.   In his government and private career, he has argued 39 cases before the U.S. Supreme Court, and has been described in the media as “one of [the Supreme Court’s] finest practitioners,” (Mauro, American Lawyer, Sept. 1, 2004), “one of the top appellate lawyers of his generation,” (Groner, Legal Times, Feb. 3, 2003), and “viewed by many as the best Supreme Court advocate in private law firm practice,” (Legal Times, Oct. 30, 2000).

            To the extent his record as an advocate can tell anything about Roberts, his arguments often speak to judicial restraint.  He co-authored the government’s successful brief in Lujan v. Defenders of Wildlife, which re-invigorated the doctrine of standing to sue in Article III Courts.  At the same time, he has represented criminal defendants, environmental interests, and the State of Hawaii in a dispute over legislation favoring Native Hawaiians as a group.

            Since his confirmation to the DC Circuit, Judge Roberts has authored about 40 opinions, but only three of his opinions have drawn any dissent.[1] Two of those cases involved rather arcane issues of statutory interpretation (e.g., availability of attorneys’ fees and interpretation of the False Claims Act), and in one case, Roberts (joined by D.H. Ginsburg) was criticized by Judge Henderson for being too lenient on a sentencing issue.  Similarly, though he has sat on numerous other three-judge or en banc panels, he has written dissenting opinions in only two cases.[2]  

Critics of Roberts’ nominations will seek to isolate particular positions espoused by advocate Roberts or adopted by Judge Roberts and argue that those positions are opposed to various political interest groups.  Most significantly, he co-authored a brief for the George H.W. Bush Administration in Rust v. Sullivan that sought to overturn Roe v. Wade.  That brief, however, restated a position that had previously been taken by the Bush Administration and the Reagan Administration before it.   The brief’s discussion of Roe took up only a few sentences in the brief and says nothing about the author’s (or co-author’s) personal views

            Similarly, critics may point to a dissent from denial of en banc rehearing he authored in the Rancho Viejo case, where Roberts cited recent Commerce Clause decisions in suggesting that the federal government might not have the power to regulate a non-migratory local species of toad, as evidence of an anti-environmental record.   Roberts’ opinion, however, simply followed recent decisions by the Supreme Court in Morrison and Lopez.  Any anti-environmental rhetoric is also belied by Roberts successful representation, while in private practice, of environmentalists fighting development around Lake Tahoe in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency.  Thus, his environmental record is hardly well-defined. 

            The battle is likely to occur over Robert’s position in Roe and the Democrats are likely to request all memoranda that Roberts wrote while he was in government service. 

Judge John G. Roberts

Circuit Judge, D.C. Circuit

3832 E. Barrett Prettyman United States Courthouse

333 Constitution Avenue, N.W.

Washington, D.C. 20001-2866

1.      Personal Background

Biographical Information

§         John Glover Roberts, Jr.

§         Born: January 27, 1955, Buffalo, New York

§         Married to Jane Marie Sullivan, July 27, 1996.  Jane Sullivan Roberts is currently a partner at Shaw Pittman in Washington, D.C.

§         Two children, both adopted

§         Religion: Catholic

Education

§         Harvard College, A.B., summa cum laude, 1976;

§         Harvard Law School, J.D., magna cum laude, 1979.

Health

§         Reported as “excellent” in March 2001 (Judge Roberts turned 50 years old in January 2005).

Finances

§         Roberts’ financial statement published during his confirmation hearing indicated a net worth of $3,782,275.  The only liability listed is the mortgage on his home, $270,272.  Assets are cash, securities, and real estate.

2.      Professional career

§         Clerkships: Law Clerk, Hon. Henry Friendly, United States Court of Appeals for the Second Circuit, 1979-1980; Law Clerk, Associate Justice William Rehnquist, Supreme Court of the United States, 1980-1981.

§         Private Practice: Hogan & Hartson, Washington, D.C., 1986-1989, 1993-2003.

§         Government Positions: Special Assistant to the Attorney General William French Smith, United States Department of Justice, 1981-1982; Associate Counsel to the President, White House Counsel’s Office, 1982-1986; Principal Deputy Solicitor General, United States Department of Justice, 1989-1993; United States Court of Appeals for the District of Columbia, 2003-present (confirmed May 8, 2003; sworn in June 2, 2003).

§         Professional Associations: District of Columbia Bar; American Law Institute; American Academy of Appellate Lawyers; Edward Coke Appellate Inn of Court; Supreme Court Historical Society.

§         Honors.  Named to Top Ten Civil Litigators by National Law Journal in 1999.   Described in the media as “one of [the Supreme Court’s] finest practitioners,” (Mauro, American Lawyer, Sept. 1, 2004), “one of the top appellate lawyers of his generation,” (Groner, Legal Times, Feb. 3, 2003), “viewed by many as the best Supreme Court advocate in private law firm practice,” (Legal Times, Oct. 30, 2000).

§         Supreme Court Experience.  Has argued 39 cases to the Supreme Court.  Argued more cases than any other private practitioner during 10 years leading up to appointment to D.C. Circuit.

3.      RECORD

            The most pertinent aspects of Judge Roberts’ record essentially fit into three categories:  (1) service in the Office of Solicitor General; (2) private practice at Hogan & Hartson; and (3) service as a Circuit Judge on the United States Court of Appeals for the District of Columbia. 

The most notable materials concerning Roberts’ service in the Office of Solicitor General were:  (1) the government’s brief in the Rust v. Sullivan  abortion case (see below), co-written by Roberts, which argued not only that regulations prohibiting Title X funding recipients from counseling patients on abortion did not violate Title X or the First or Fifth Amendments, but also restated the Bush Administration’s position that that Roe v. Wade was wrongly decided, and (2) the government’s briefs in Lujan (see below), upon which Robert’s was attacked during his circuit court confirmation hearings.

While in private practice at Hogan & Hartson, Roberts, for the most part, did not handle many highly politically sensitive cases.  While Roberts tended to represent corporate clients, he often . . . . ..  However, it is during this period of his career that Roberts earned the respect of people on both sides of the aisle.  Roberts also authored articles which necessarily contain some editorializing and his personal opinions. 

During his brief tenure on the D.C. Circuit,  Roberts’ written opinions evidence a record of judicial restraint.  Roberts’ two dissents from the denials of en banc review have attracted more attention than any of his written opinions.  Roberts dissented from denial of en banc review in the Rancho Viejo case -- a case upholding the Department of the Interior’s suppression of real estate development to protect an endangered species -- the southwestern arroyo toad.  Roberts’ dissent invoked recent changes in the Supreme Court’s Commerce Clause jurisprudence recognizing that the federal government’s legislative authority is not unlimited.   He questioned whether, as a result of that jurisprudence, the federal government had any interest in regulating the movement of a non-migratory, purely local species of frog.  

Roberts also dissented from the denial of en banc review in the Administration’s Energy Task Force case, which provoked claims that Roberts unduly supported Administration secrecy.  His position in that case was eventually affirmed by the Supreme Court on a 7-2 vote and subsequently by the en banc D.C. Circuit on remand by an 8-0 vote. 

4.      LIKELY GROUNDS OF ATTACK

            Roberts’ D.C. Circuit confirmation hearings will likely provide the roadmap for opponents’ attack strategies.  The criticisms brought by liberal groups and echoed in the Senate hearings, along with the best responses to those criticisms, updated to include references to Roberts’ recent D.C. Circuit Court opinions where relevant, are summarized below.

            During his relatively short tenure on the D.C. Circuit, Roberts’ judicial opinions, not surprisingly, concern principally technical administrative law issues and have not yet touched on many hot-button social or political issues.  Consequently, his decisions to date are not particularly revealing.  They nonetheless appear consistent with his reputation as a principled conservative jurist who favors judicial restraint and respects the separation of powers embodied in the Constitution, as someone who is impartial in his application of the law, and as one who exercises appropriate judicial temperament, rarely, if ever, resorting to strident or inflammatory rhetoric or argument.  It is a strong record that speaks of stellar legal qualifications and respect for the limited role of the courts.  It leaves a relatively small target for opponents, but also leaves some room for doubt as to Roberts position on many issues. 

Summary of Attacks Raised During Previous Confirmation Process and Best Responses (including references to relevant D.C. Circuit opinions):

Attack: Roberts is pro-life. 

Opponents will undoubtedly argue that Roberts is hostile to abortion rights based on a pair of briefs on which Roberts appeared while Deputy SG (a) Rust v. Sullivan and Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993).   Roberts’ opponents have argued that Roberts unnecessarily called for the Supreme Court to overturn Roe v. Wade in Rust, a case challenging federal regulations which prohibited certain receipients of federal funds from counseling patients on abortion.  Critics argue that the case could have been argued solely on the basis of statutory construction of the provisions at issue.   Critics also point to Roberts’ co-authoring the government’s amicus brief in Bray, a private suit brought against Operation Rescue, which argued that Operation Rescue was not engaged in a conspiracy to deprive women of equal protection rights.  The unspoken undercurrent of these charges, and the likely basis for a whispering campaign against Roberts, is that he is a practicing Catholic and therefore predisposed to advancing the social policies of the Catholic Church through judicial opinions.

Response:  

•        In both cases, Roberts, as one of several attorneys on the brief for the government, was simply arguing the position of the United States, his client.

•        The Rust argument, which has been a focal point of criticism of Roberts by PFAW and other abortion interest groups, is easily rebutted.  The SG’s office was simply restating the position that the Reagan and Bush Administrations had already taken in several other cases.  Indeed, while the focus of the government’s Rust argument was statutory, the reference to Roe in the Rust brief was minimal:   “Petitioners argue that the Secretary’s regulations impermissibly burden the qualified right discerned in Roe v. Wade, 410 U.S. 113 (1973), to choose to have an abortion. . . . We continue to believe that Roe was wrongly decided and should be overruled.  As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.”   Judge Roberts has not decided any cases involving abortion, and it would be irresponsible to speculate on how he might rule in such a case. 

•        At bottom, critics who attack Roberts’ unstated views on abortion are simply attempting to impose a religious litmus test on nominees, i.e., practicing religious (especially Christians) need not apply.  This is the same scurrilous attack on several of the President’s lower court nominees, such as Bill Pryor, and has no place in modern politics.

Attack from People for the American Way: Dissent from the denial of rehearing en banc in Rancho Viejo v. Norton.

            The People for the American Way have sought to brand Roberts as both a right-wing extremist and anti-environmentalist as a result of his dissent from the denial of rehearing en banc in Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003).  In Rancho Viejo, a real estate development company challenged the Department of Interior’s application of the Endangered Species Act to stop a project that “was likely to jeopardize the continued existence of the arroyo southwestern toad.”  The case principally involved an attack on Congress’ power to regulate what appeared to be completely intra-state activity.   The left’s attack focuses on how Roberts’ view of Commerce Clause jurisprudence would have prevented the arroyo southwestern toad’s protection from these particular developers.  (Judge David B. Sentelle also authored a separate dissent to the denial of en banc review).

Response:  Mission Viejo involved a Fish and Wildlife Service order to a developer to move a fence from its own property in order to accommodate the movement of southwest arroyo toads, a non-migratory species.  Roberts’ dissent, like Judge David Sentelle’s separate dissent, questioned whether, in light of recent Supreme Court decisions scaling back what was once viewed as Congress’ unlimited power over interstate commerce, the federal government really had any authority to regulate such non-commercial activities as the movement of a toad.   His position recognized the common sense view that the government should not regulate every aspect of every transaction in commerce that does not have an interstate component, arguing that it made little sense to conclude 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.”  While the position did not prevail, it was reasonable and well within the mainstream of conservative legal thought, given recent trends in Supreme Court decisions (Lopez and Morrison).  

 Roberts’ dissent, , suggests that the circuit should attempt to resolve what appeared to be a intra-circuit split given the opinions in Rancho Viejo and National Assoc. of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), and an intra-circuit split with a Fifth Circuit case (See GDF Realty Inv., Ltd. v. Norton, 326 F.3d 622, 634-35 (5th Cir.2003)) that followed the Supreme Court’s decision in United States v. Morrison and United States v. Lopez, two major Commerce Clause decisions that substantially curtailed the federal government’s authority.   The decision should not be portrayed as anti-environment, but one that sought to reconcile seemingly conflicting circuit law in light of subsequent direction from the Supreme Court.

Attack: Roberts is anti-environment. 

            Opponents will again state that Roberts’ successful argument on behalf of the government in Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992), indicates a callous disregard for the environment.  They will cite as support his recent decision, writing for a unanimous panel, which included Judges Henderson and, significantly, Tatel, in Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004), holding that the EPA’s actions in using particulate matter as a substitute for hazardous air pollutants in regulating emissions from copper smelters were reasonable, despite being arguably different than regulations applied to a different industry. 

Response:  Characterization of a ruling regarding the jurisdiction of Courts as anti-environment or pro-environment is irresponsible and misrepresents the issues before the Court.   The government’s position in Lujan demonstrated a healthy respect for the proper division of power between the Courts and Congress, and in adopting that position, the Court helped curtail judicial overreaching in cases better left to the political process.   The standing doctrine advocated by the Government in Lujan has kept the Court out of numerous disputes where a party that has suffered no injury seeks to use the Courts to make a political point.  Roberts’ consistent refrain regarding Lujan  has been that, far from being the wholesale revision to the law its opponents claim, it upheld precedential standing doctrines by requiring plaintiffs to demonstrate an injury-in-fact that was not apparent in the record before the Court. 

     Judge Roberts’ decision for the Court in Sierra Club v. EPA is notable for a couple of reasons.  First, it was joined by Judge David Tatel, a Clinton appointee and one of the more liberal jurists on the D.C. Circuit.  Second, it merely deferred to the Executive Branches interpretation of federal law, indicating a proper respect for the limited role of the Courts in our government.  

     In any event, in private practice Roberts successfully represented environmentalists fighting development around Lake Tahoe in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, in which the Court adopted Roberts’ position against those of the developers and property owners, over the dissent of Rehnquist, Scalia, and Thomas.   As in Lujan, Tahoe-Sierra demonstrates nothing more than Robert’s excellent advocacy on behalf of his clients, and cannot be read to suggest he is either pro-environmentalist or anti-property rights.  

Attack: Roberts is hostile to civil rights and affirmative actions. 

            During his confirmation to the D.C. Circuit, left-wing activist groups accused Roberts of being hostile to civil rights and affirmative action, citing the following cases in which Roberts co-authored briefs while in the Solicitor General’s office:  (a) Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991) (this brief, according to the Alliance for Justice, “sought to weaken the standard and limit the timeline for court-enforced desegregation decrees in the nation’s schools”), and (b) Freeman v. Pitts, 503 U.S. 467 (1992) (according to the Alliance for Justice, this brief successfully argued “to lower the bar for the proof that school systems that had previously engaged in de jure discrimination had to show in order to obtain the court’s revocation of a desegregation decree.”).  Opponents may also cite: (a) Roberts’ opinion (for a unanimous panel of Roberts, Henderson and, again, Tatel) in Sioux Valley Rural Television, Inc. v. FCC, 349 F.3d 667 (D.C. Cir. 2003), in which the court rejected petitioners’ claim that the FCC’s new bidding rules revoking minority and women-owned business credits while at the same time extending credits for all successful small businesses did not have a discriminatory intent and were not arbitrary and capricious when applied retroactively; (b) Roberts’ opinion (panel included Henderson and Williams) in Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004 WL 2381320 (Oct. 26, 2004), in which he held that a 12 year old girl’s arrest for eating a french fry in a rail transit station did not violate her civil rights under the Equal Protection Clause or the Fourth Amendment; and (c) Roberts’ decision (for a unanimous panel including Roberts, Randolph, and Williams) in Stewart v. Evans, 351 F.3d 1239 (D.C. Cir. 2003), holding that a female employee did not have a reasonable expectation of privacy with respect to certain personal notes she had taken regarding a male co-worker’s inappropriate behavior because she turned them over to a FOIA representative with the understanding that they might be further disclosed, even though the FOIA rep agreed not to reveal them within the Department and maintained them in a locked safe.

Response: Roberts’ record as a Supreme Court advocate cannot be easily characterized as either pro- or anti-civil rights.   As a private practitioner, he represented the Governor of Hawaii in defending the State’s preferential treatment of Native Hawaiians in Rice v. Cayetano.   He co-authored government’s brief in U.S. v. Mabus, 1991 WL 527603, arguing that Mississippi continued to propagate a “dual system” of racially segregated public universities in violation of the Equal Protection Clause and the 1964 Civil Rights Act.   His record as an advocate is quite balanced in this area, and simply reflects the fact that he represented a wide array of clients with a broad set of interests. 

     His judicial decisions do not reflect any hostility to civil rights, but merely the reality that not every individual who seeks relief in court is entitled to it.  Hedgepeth, for instance, upheld the decision of a liberal Clinton-appointed district court judge, Judge Emmet Sullivan, and reflects an appropriate deference to the legislature, even when a court might find a law otherwise distasteful.  The case is replete with references to the fact that the judges thought the enforcement of the zero-tolerance rule heavy-handed and wrong, but that they were obliged not to impose their personal preference on an otherwise valid law.  It was decided squarely on the basis of existing precedent finding that age-based laws are subject only to rational basis review, and deference to the officers making the arrest where the underlying policy did not permit discretion. 

Attack: Roberts is hostile to the rights of criminal defendants. 

            In his confirmation hearings, opponents argued that Roberts’ participation on behalf on the government in two amicus briefs indicates a desire to limit the rights of criminal defendants.  See Denton v. Hernandez, 504 U.S. 25 (1992) (amicus brief arguing that the Ninth Circuit test to permit a court to dismiss an in forma pauperis complaint only if it could take judicial notice that the facts alleged did not occur was too stringent); Burns v. U.S., 501 U.S. 129 (1991) (amicus brief arguing that no advance notice to defendant was required for an upward departure from sentencing guidelines).  In further support of this attack, opponents might note two D.C. Circuit decisions authored by Roberts for a unanimous panel: (a) U.S. v. Holmes, 385 F.3d 786 (D.C. Cir. 2004), holding that the search of a passenger compartment of defendant’s car did not exceed the scope of search incident to his arrest for assaulting an officer; and (b) U.S. v. Tucker, 2004 WL 2381324 (D.C. Cir., Oct. 26, 2004), holding that the lower court’s substantial downward departure from sentencing guidelines was not justified for the reason stated by the lower court, namely, that the sentencing guidelines are unjust.  (Tucker, of course, involved a tirade by Judge Jackson who indicated that because he thought the guidelines-mandated sentence too harsh, he would grant a downward departure without making the necessary findings and admittedly invite appellate reversal.  The D.C. Circuit scolded Jackson, and reversed and remanded to give the district court an opportunity to make appropriate factual findings for the departure.)

     Response: Again, Roberts’ record on criminal rights is much more balanced than his critics suggest.  (a) Roberts wrote for a unanimous panel (Randolph, Williams, Roberts) in Warren v. District of Columbia, 353 F.3d 36 (D.C. Cir. 2004), holding that a pro se prisoner had stated a § 1983 claim for relief, based in large part on the fact that “pro se prisoner complaints should be ‘liberally construed’”; (b) Roberts represented many criminal defendants on a pro bono basis while in private practice, including his pro bono representation of the defendant in U.S. v. Halper, 490 U.S. 435 (1989), in which he argued successfully that the Double Jeopardy Clause barred imposition of civil penalties under federal law against an individual who had already been convicted and punished under federal criminal law for the same conduct. 

Attack: Roberts is hostile to the First Amendment’s Establishment and Freedom of

Speech Clauses.  

            Opponents have argued that Roberts supports an expanded role of religion in schools, citing two briefs he co-authored while with the Solicitor General’s office:  Lee v. Weisman, 505 U.S. 577 (1992) (arguing that public high schools should be allowed to conduct religious ceremonies as part of a graduation program); Mergens v. Westside Community School District, 496 U.S. 226 (1990) (arguing that barring a religious group from meeting on school grounds violates the Equal Access Act, while granting access does not violate the Establishment Clause).  In addition, opponents have cited Roberts’ brief in U.S. v. Eichman, U.S. v. Haggerty, 496 U.S. 310 (1990), arguing that the 1989 Flag Act, which prohibited burning the U.S. flag, did not violate the First Amendment.  The Court subsequently held 5-4 that the Flag Act was unconstitutional. 

Response:  Again, Roberts’ briefs in the SG’s office should not be used against him as he is taking his client’s position.  His position in the flag burning case, for instance, merely involved the defense of a federal statute, a role that the Justice Department is obligated to undertake so long as there is a good faith defense available.  The positions espoused in these cases are well within the mainstream of legal thought. 

Attack: Roberts is an “extremist” in the mold of Scalia and Thomas. 

            This is likely to be the most pervasive attack against Roberts, along with his religion, and is the underlying political subtext for all issue-based attacks (see, e.g., Statement of Senator Edward Kennedy on Confirmation of John G. Roberts, Wednesday, April 30, 2003).  Support for this allegation will be found in every decision or writing that can reasonably be construed as restraintist or strict constructionist in flavor, or that has Roberts agreeing with Scalia or Thomas, regardless of the reasoning. 

     Response:  See discussion of Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency above, where the Court adopted Roberts’ client’s position against the rights of property owners and over the dissent by Scalia, Rehnquist and Thomas.  In addition, many of Roberts’ briefs written while in private practice appear to defend federal preemption (see, e.g., State of California et al. v. Dillingham Construction, Inc. et al., 1996 WL 335322 (arguing in favor of federal ERISA preemption); Medtronic Inc. v. Lora Lohr and Michael Lohr, 1996 WL 109618 (arguing in favor of broad federal preemption of states’ product liability laws).  But see Jefferson v. City of Tarrant, Alabama, 1997 WL 401190 (arguing against federal common law replacing state law on remedies for deceased or survivors in wrongful death cases).

Attack: Roberts Consistently Sides with Corporations over Unions and Workers’          Rights. 

            Opponents may focus on Roberts’ private practice client base, which had him representing many corporations in various matters, often against labor unions. 

            Response: Roberts has represented all manner of clients, including environmental groups (see Tahoe-Sierra case cited above), criminal defendants (on a pro bono basis), and the government.  His representation of corporations in union disputes is not unusual for a seasoned appellate advocate.  Moreover, he has authored briefs that sought to expand the rights of employees.  In EEOC v. Arabian American Oil Co., 1990 WL 511330 (Nov. 15, 1990), Roberts’ brief for the government argued the Title VII prohibits employment discrimination outside the United States by an American corporation against an American citizen working abroad. 

Attack:  Roberts supports the Bush Administration’s unparalleled secrecy.

            Roberts voted in favor of the D.C. Circuit’s en banc review of the decision in Sierra Club and Judicial Watch v. Cheney – the National Energy Policy Development Group case where interest groups sought to obtain communications and internal deliberations of the Vice President’s group that was constituted to advise the President on national energy policy.  En banc review was denied and Sentelle, Randolph, and Roberts submitted a dissent to the denial.  The en banc vote could also be used by interest groups to state that Roberts’ is willing to protect the Administration’s “secret’ communications with energy companies over the public’s “right to know” and environmental interests.  (In addition, this case generated controversy regarding Justice Scalia’s now-infamous hunting trip with the Vice President).

Response:  In a 7-2 decision authored by Justice Kennedy, the Supreme Court granted review and vacated the district court’s decision giving the interests groups access to the Vice President’s records.  The case was remanded for further proceedings in the D.C. Circuit, which affirmed the Vice President’s position and dismissed the case by an 8-0 vote.  Therefore, Roberts’ view in his en banc dissent was ultimately vindicated.
D. C. Circuit Panel Decisions

      In general, Roberts’ written opinions reflect a pattern of judicial restraint and deference to agencies.  The panel decisions in which Roberts participated but did not write the opinion were relatively non-controversial.  The following cases are highlighted because they touch on issues of political interest:

Criminal Issues

§         United States v. Stanfield, 360 F.3d 1346 (D.C. Cir. 2004).  Roberts wrote for a unanimous panel (including Edwards and Garland), upholding various procedural rulings made by the district court in a criminal case.  Specifically, the court held that (a) allowing counsel only nine minutes to review several inches worth of Jencks Act material was not an abuse of discretion; (b) limiting defendant’s cross of the probation officer to 20 minutes (because that was the length of time on direct) did not violate the right to confront witness; and (c) certain hearsay statements were admissible because, although clearly hearsay, they were sufficiently reliable.

§         United States v. Holmes, 385 F.3d 786 (Oct. 19, 2004).  Roberts held for a unanimous panel that the search of a passenger compartment of defendant’s car did not exceed scope of search incident to his arrest for assaulting an officer during the traffic stop, and affirmed the Judge Kennedy’s decision below denying defendant’s motion to suppress. 

§         United States v. Tucker, 2004 WL 2381324 (Oct. 26, 2004).  Roberts, writing for a unanimous panel, held that the lower court’s substantial downward departure from sentencing guidelines was not warranted on the basis provided by the lower court—that the sentencing guidelines were unjust—and vacated the sentencing decision and remanded the case.  The court’s position refused to adopt the results-oriented decision by judge Jackson in light of clear Supreme Court authority requiring specific findings for a downward departure.

§         United States v. Thomas, 361 F.3d 653 (D.C. Cir. 2004).  A unanimous panel (Ginsburg, Garland, Roberts) evaluated two issues regarding the Sentencing Guidelines.  The Court held that: (a) escape constitutes a “crime of violence” under the Guidelines; and (b) it was “plain error” for the district court to rely on a defendant’s arrest record in denying downward departures.  (NOT WRITING)

Civil Issues

(1) Administrative Law

§         Sierra Club v. Environmental Protection Agency, 353 F.3d 976 (D.C. Cir. 2004).  Roberts wrote for a unanimous panel (including Henderson and Tatel) denying the Sierra Club’s petition for review of EPA’s regulations concerning certain pollutants released in the process of smelting copper.  The opinion is fairly technical, but, in short, the Court held that EPA’s actions were “reasonable,” notwithstanding the fact that the regulations were arguably different (and less stringent) than those applied to a different industry.

§         Non-deferral cases.  Roberts wrote for the panel in two agency cases in which the Court granted petitions for review on the ground that the agency had failed adequately to explain why its decision was consistent with its own precedent.  See Lemoyne-Owen College v. NLRB, 357 F.3d 55 (D.C. Cir. 2004) and Ramaprakash v. Federal Aviation Administration, 346 F.3d 1121 (D.C. Cir. 2003).

§         Independent Equipment Dealers Association v. EPA, 372 F.3d 420 (June 25, 2004).  Roberts wrote for a unanimous panel that the EPA had not engaged in any reviewable action or create new policy when it sent a letter interpreting emissions regulations for nonroad engines.  Although opponents could potentially use the decision to demonstrate that Roberts is willing to bow to the administration’s wishes on environmental policy, the court appropriately did not frame the issue in terms of defending a new policy, but rather held that the EPA was merely reiterating long-standing policy and had engaged in reviewable final agency action.

§         National Council of Resistance of Iran v. Department of State, 373 F.3d 152 (July 9, 2004).  Roberts, writing for a unanimous panel, held that an organization’s designation as a Foreign Terrorist Organization (FTO) based on determination that it was an alias of another organization designated as an FTO, had substantial support in the record and was consistent with the Anti-Terrorism and Effective Death Penalty Act of 1996.

§         Williams Gas Processing – Gulf Coast Company, L.P. v. Federal Energy Regulatory Commission, 373 F.3d 1335 (July 13, 2004).  Roberts wrote for a unanimous panel that a decision of FERC regarding gas gathering activities of pipeline company was arbitrary and capricious.  Although the decision could be used to show that Roberts supports oil and gas companies over environmental interests, it actually stands for nothing more than the proposition that agencies should be consistent in their application of regulations and not arbitrary in deciding cases.  See, e.g., Ramaprakash v. Federal Aviation Administration, 346 F.3d 1121 (Oct. 21, 2003) (Roberts finding that National Transportation Safety Board had failed to explain adequately its departures from its own established precedent in no fewer than three respects); Duchek v. National Transportation Safety Board and Federal Aviation Administration, 364 F.3d 311 (April 20, 2004) (Roberts holding that FAA could not revoke an airman’s license based on his failure to respond to notice because a notice from a designated representative was not the equivalent of “direction by the employer”); but see Midwest ISO Transmission Owners v. FERC, 373 F.3d 1361 (July 16, 2004) (Roberts holding for unanimous panel that FERC’s orders applying tariff were not arbitrary and capricious).  Overall, these cases taken together demonstrate that Roberts expects administrative agencies to apply their own procedures and policies in a fair, reasonable, and consistent manner – a position consistent with a philosophy of judicial restraint.

§         PDK Labs. Inc. v. United States Drug Enforcement Admin., 362 F.3d 786 (D.C. Cir. 2004) (concurring opinion).  The concurrence here argues for judicial restraint.  The majority held that the plaintiff had standing to seek review of DEA’s suspension order and then went on to attempt to interpret or clarify the statute authorizing the DEA to forbid importation if “the chemical may be diverted to the clandestine manufacture of a controlled substance.”  Id. at 789 (citing 21 U.S.C. § 971(c)(1)).  In his concurring opinion, Roberts chides the majority for going beyond what was necessary to remand the case.  He argues that once the standing question was resolved, the case should have been vacated and remanded without further discussion, citing the “cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more.”  Id. at 799.  He further noted that imposing its interpretation on the DEA violated the Chevron doctrine, because it did not give the DEA an opportunity to rule on the interpretation issue first.

§         S.A. Storer & Sons Co. v. Sec. of Labor, 360 F.3d 1363 (D.C. Cir. 2004).  Unanimous panel (Henderson, Tatel, Roberts) vacated and remanded decision by the Secretary of Labor that company had violated OSHA regulations concerning the safety of scaffolding.  But, appears to be a “mixed” decision from the labor perspective, because although the Court held that one regulation had been improperly interpreted, the Court also held that the employer had not appropriately protected worker safety in another aspect.  (NOT WRITING)

(2) Constitutional/Employment/Other

§         Sioux Valley Rural Television, Inc. v. Fed. Communications Comm’n, 349 F.3d 667 (D.C. Cir. 2003).  Roberts wrote for a unanimous panel (including Henderson and Tatel) in a reverse-race/sex discrimination case regarding FCC’s bidding rules.  Petitioners alleged that the FCC’s decision to revoke minority- and women-owned business credits, while at the same time extending credits for all successful small businesses, was unfair to non-minority- and non-women-owned businesses.  The court rejected the claim, noting that the FCC had no discriminatory intent in adopting the change, and that it was not arbitrary or capricious for the agency to make the new bidding rules retroactive.

§         Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004 WL 2381320 (Oct. 26, 2004).  Roberts wrote for a unanimous panel, affirming the decision by Judge Sullivan below, that a young girl who was arrested for eating a french fry in rail transit station could not state a claim for violations of her Equal Protection or Fourth Amendment rights, and the court could not inquire into reasonableness of decision to arrest since the District of Columbia’s Code specifically prohibited conduct in question and there was probable cause to arrest.  While admitting that the result was harsh and acknowledging that the policy was subsequently changed, Roberts’ decision reflected judicial restraint, deferring to the police.

§         United States ex rel. Totten v. Bombardier Corporation, 380 F. 3d 488 (D. C. Cir. Aug. 27, 2004).  This is one of Roberts’ opinions that resulted in a dissent.  The case involved a qui tam action against a contractor under the False Claims Act for allegedly submitting false claims to Amtrak in order to obtain payment for allegedly defective railroad cars.  Roberts’ panel decision with Judge Rogers determined that a payment to Amtrak was not a payment to the government subject to the False Claims Act.  Judge Garland’s dissent disagrees with Roberts’ literal statutory interpretation.  It does not appear that there is a significant basis to attack the opinion, although Sens. Grassley and Leahy may very well question him about it given their strong support for an expansive reading of the False Claims Act.     

§         Lohrenz v. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003).  Unanimous panel (Rogers, Silberman, Roberts) concluded that plaintiff, one of the first female combat pilots in the Navy, was a “public figure” for purposes of establishing defamation under NYT v. Sullivan, and that she had failed to prove “actual malice.”  This arguably could be characterized as an anti-female opinion, since the appellee was an interest group opposed to allowing women to serve in combat positions in the military. (NOT WRITING)

§         Warren v. District of Columbia, 353 F.3d 36 (D.C. Cir. 2004).  Unanimous panel (Randolph, Williams, Roberts) held that a pro se prisoner had stated a § 1983 claim for relief -- based in large part on the fact that “pro se prisoner complaints should be ‘liberally construed.’”  Id. at 37.  (NOT WRITING)

§         In Acree v. Republic of Iraq, Roberts wrote a concurring opinion that argued for the result (which was the dismissal of a case involving American POWs from the 1991 Gulf War who had sued the Republic of Iraq and its president) citing the plain meaning of the governing statute’s language rather than a more extended argument adopted by the majority.  See Acree v. Republic of Iraq, 370 F. 3d 41 (D. C. Cir. June 4, 2004, reh’g en banc denied Aug. 19, 2004).   Roberts’ opinion indicates that he has respect for Congress’ authority and attempts to be faithful to the express language of a statute wherever possible.  (NOT WRITING)

6.  SUPREME COURT BRIEFS

§         Rust v. Sullivan, 1990 WL 505725 (Sept. 7, 1990).  The government’s brief here, co-written by Roberts, arguably went beyond what was required by the case’s merits to state the broader policy of the administration -- that Roe v. Wade was wrongly decided.  The most controversial portion of the brief is the following quote: 

Petitioners argue that the Secretary’s regulations impermissibly burden the qualified right discerned in Roe v. Wade, 410 U.S. 113 (1973), to choose to have an abortion. . . . We continue to believe that Roe was wrongly decided and should be overruled.  As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.  If Roe is overturned, petitioners’ contention that the Title X regulations burden the right announced in Roe falls with it.  But even under Roe’s strictures, the Title X regulations at issue do not violate due process.  This Court has repeatedly recognized that ‘the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” (citations omitted).   Thus, while under Roe the government may not prohibit a woman, during the first trimester, from choosing to have an abortion, the government is not obligated to provide the means to exercise any such right. . . . (citations omitted). 

This will be a significant, if not the primary, point of attack on Roberts.  Although Roberts, as the principal deputy SG, was a co-author along with several others (Starr as Solicitor General, Gerson as Asst. Attorney General-Civil, and Jeffrey P. Minear, Assistant SG, and others), and did not direct policy for the Dept. of Justice under President George H. W. Bush, this was the focus of much of the opposition to Roberts’ nomination to the D.C. Circuit, and will no doubt be the focus again.  

§         Lujan v. National Wildlife Federation et al., 1990 WL 505743 (April 6, 1990).  While in the SG’s office, Roberts co-authored the government’s brief.  As noted in his article defending Lujan, Roberts argues that the decision applied established standing jurisprudence—proof of an injury in fact.  Roberts frames the issues as “whether a federal court may effectively supply the requisite proof of standing by ‘presuming’ facts that the parties did not—and perhaps cannot—allege on their own.”  This will undoubtedly be raised again, both because of its charged environmental background, and because Scalia wrote the opinion for the majority adopting Roberts’ argument. 

§         EEOC v. Arabian American Oil Co., 1990 WL 511330 (Nov. 15, 1990).  Roberts’ brief for the government argued the Title VII prohibits employment discrimination outside the United States by an American corporation against an American citizen working abroad.  This brief might be useful in deflecting criticism of Roberts’ record on civil rights claims.

§         Burns v. United States, 1990 WL 505508 (Sept. 12, 1990).  Roberts argued here that Due Process does not require a district court to notify a defendant in advance of its intent to depart upward in the sentence prescribed by the Sentencing Guidelines.  This brief might be used in support of criticism of Roberts’ civil rights record and perceived hostility to “due process.”  Because the case relates to procedural, rather than substantive, due process rights, however, the case should raise few problems. 

§         Houston Lawyers Ass’n v. The Attorney General of Texas v. League of United Latin American Citizens, 1991 WL 11007899 (March 4, 1991).  Roberts argued in favor of applying the “results” test of the Voting Rights Act to the election of state court judges and to the election of offices that can be held by only one person.  This case could potentially be used to show that Roberts’ represented his government client in an expansive reading of the Voting Rights Act. 

§         United States v. Mabus, 1991 WL 527603.  Roberts also represented the government, arguing that Mississippi continued to propagate a “dual system” of racially segregated public universities in violation of the Equal Protection Clause and the 1964 Civil Rights Act.  As previously discussed, this brief can be used to rebut claims that he is anti-civil rights.

§         Astoria Fed. Savings & Loan Ass’n v. Solimino, 1991 WL 11007849.  Roberts was on the amicus brief filed on behalf of the U.S. and the E.E.O.C.  The question presented was whether, in a federal court proceeding under the ADEA, state agency findings of fact that have not been judicially reviewed have preclusive effect.  The brief argues that while state agency findings should be accorded substantial weight, they should not have preclusive effect.

§         United States and FCC v. Edge Broadcasting Company, 1993 WL 289152.  Respondent radio/licensee mounted an attack on Congress’ power to regulate the advertisement of state lotteries over radio airwaves.  The brief argued in support of Congress’ power to regulate gambling and that there was no First Amendment violation with the regulation of this commercial speech.

§         United States v. A Parcel of Land, Buildings, Appurtenances . . . 92 Buena Vista Ave., Rumson NJ, 1993 WL 445385.  Brief argues in support of a tough approach to the enforcement of a civil forfeiture statute for property purchased with the proceeds from a drug transaction(s).  The government’s position was that even when a person (here, a girlfriend) receives a gift of money derived from drug sales and purchases property with that gift, that person cannot assert a valid “innocent owner” defense. 

§         Jerome B. Grubardt, Inc. v. Great Lakes Dredge & Dock Company, 1994 WL 249174.  Roberts represented the Respondent.  This suit concerned the unique application of admiralty principles in federal court. 

§         First Options of Chicago, Inc. v. Kaplan, et al., 1995 WL 71517. Roberts represented Respondent Kaplan.  Roberts argued that the question of whether parties agreed to arbitrate is a question for the courts, not arbitrators, under the Federal Arbitration Act.  Generally, a pro-business approach is one that would argue for the arbitrators, not the courts, deciding the scope of the arbitration clause.  Here, however, he was merely representing his particular client’s interests.

§         International Union, et al. v. Bagwell, Clinchfield Coal Co., et al., 1993 WL 417634 Roberts represented the Respondent coal companies against the unions -- seeking to uphold the state court’s method for sanctioning the unions’ violent activities against, among other arguments, due process clause considerations. 

§         Digital Equipment Corp. v. Desktop Direct, Inc., 1993 WL 657281.  Roberts represented Petitioner in this case dealing with federal appellate jurisdiction. The arguments were confined to the scope of the “collateral order” doctrine for interlocutory appeals.

§         Holly Farms, Tyson Foods, Inc. v. NLRB, 1995 WL 756167.  Roberts represented Amicus Curiae National Broiler Council in supporting Petitioners.  This brief merely argued statutory interpretation principles regarding the National Labor Relations Act in a way more favorable to the chicken industry.

§         Brown v. Pro Football, Inc., d/b/a Washington Redskins, et al., 1996 WL 72349 (AMICUS).  Roberts represented Amicus Curiae Associated General Contractors of America, Inc. supporting Respondents.  This amicus brief supports not imposing antitrust liability on the multi-employer bargaining process in dealing with collective bargaining agreements.  The amicus comments on the effect on industries, other than football, if the court accepted the labor position.  

§         Medtronic Inc. v. Lora Lohr and Michael Lohr, 1996 WL 109618 (AMICUS).  Roberts represented Amicus Curiae Center for Patient Advocacy and the Calif. Health Care Institute in su