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  • Ashley Baker

Report: An Examination of Judge Roberts' Record

The Committee for Justice reports on the record of Judge Roberts.

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 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, avoided any highly politically sensitive cases. However, Roberts tended to represent large corporate interests and oftentimes those corporate interests clashed with positions taken by labor organizations. However, it is during this period of his career that Roberts appears to have made himself well-liked by 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’s written opinions evidence a strong acceptance of principles of judicial restraint. Roberts’s two dissents from the denials of en ban 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’s dissent focused on judicially conservative principles of Commerce Clause jurisprudence (but in the context of a case involving politically sensitive environmental regulation). Roberts’s 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. Nonetheless, Roberts appears to have kept a relatively low profile while on the bench and has maintained a consistent proponent of judicial restraint...

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