Until his confirmation to the federal bench in 2003, Washington, D.C., attorney John Roberts Jr. dropped in regularly at 214 Massachusetts Avenue N.E. to hassle other lawyers.
OK, not hassle exactly. Mr. Roberts, then in private practice, volunteered at the Heritage Foundation, teaming with conservative attorneys like Miguel Estrada and Jay Sekulow for "moot courts"-mock arguments in which lawyers gear up for the real thing by practicing before respected peers who play the role of fire-breathing judges.
During the moot courts, says Todd Gaziano, director of Heritage's Center for Legal and Judicial Studies, "we used to tease him." Mr. Roberts had been tapped for the federal bench in 1992-a nod Democrats let die a procedural death-and his 2001 nomination was still on hold, so "we'd say, 'You know, with a nomination that's 11 years old and pending, this might be as close as you're ever going to get to being a federal judge.'"
Mr. Roberts' replies were always good-natured and self-deprecating, Mr. Gaziano recalls: "He'd laugh and say, 'You may be right . . . I'll just play the role today.'"
Now it appears likely that the strict constructionist will ascend to star billing in the federal judiciary. Most conservatives cheered on July 19 when President Bush announced the nomination of Mr. Roberts to be the 109th justice of the Supreme Court.
Liberals, meanwhile, groaned, not so much over Mr. Roberts' judicial philosophy as the fact that he makes a mighty skinny target. His record-razor-edged legal intellect, fair-minded civility, past Democratic endorsements, and a complete absence of culturally polarizing law-journal articles carrying his byline-left liberals lobbing softballs at a nominee they'd been hoping to nuke.
Still, despite conservative optimism, Mr. Roberts is something of an ideological mystery. The 49 opinions he's written since his unanimous Senate confirmation to the U.S. Court of Appeals for the D.C. Circuit in 2003 reveal little of his leanings on issues important to conservatives, such as abortion and school choice. Although he is a church-going Catholic married to a sometime pro-life activist, his own abortion views are publicly unknown.
Mr. Roberts' Catholic roots stretch back to childhood. Born Jan. 27, 1955, in Buffalo, N.Y., Mr. Roberts grew up in Long Beach, Ind., compiling a personal resumé that reads like a hard-work-in-the-heartland success story. The only son in a family with three daughters, he attended La Lumiere, a small Roman Catholic boys' school, and became captain of the football team. As a young man he worked summers in a steel mill to help pay his way through Harvard College, a four-year stint he capped off summa cum laude in 1976.
In 1979, Mr. Roberts graduated from Harvard Law School, finishing at the top of his class. He moved to Washington, D.C., where he clerked first for 2nd Circuit appeals court Judge Henry Friendly, then for Supreme Court Justice William Rehnquist. In 1981 he signed on with the Reagan Justice Department, serving as special assistant to U.S. Attorney General William French Smith, and later in the White House Counsel's Office as associate counsel to the president.
Today, Mr. Roberts and his wife, Jane Sullivan Roberts, are the parents of two adopted children, Josie, 5, and Jack, 4. Mrs. Roberts serves as legal counsel on a pro bono basis for Feminists for Life of America (FFLA) and was executive vice president on the group's board of directors from 1995 to 1999. The Summer 2002 edition of The American Feminist, FFLA's quarterly, lists her as a member of the "Elizabeth Cady Stanton Circle" of fundraisers for raising $1,000-$2,499.
Now a technology transactions attorney for the D.C. firm Shaw Pittman, Mrs. Roberts also serves on the board of trustees of Holy Cross, a Catholic university, and on the board of governors of the John Carroll Society, an association of Catholic laity "united in their desire for an ever deepening and enriching knowledge of their faith and in service to the Cardinal of the Archdiocese of Washington, D.C."
Mr. Roberts, meanwhile, is a "traditional Catholic" who does not talk about his religion, Washington lawyer Shannen Coffin told the Chicago Tribune. "He's a guy who'll show up for Mass on Sunday and that's sort of his own business," said Mr. Coffin, who attends the same church.
But Mr. Roberts has at least once made it his business to defend the expression of religious faith. In 2000, while in private practice, Mr. Roberts defended the Connelly School of the Holy Child, a Catholic institution tucked into an affluent Maryland suburb. After some neighborhood residents learned that local officials had granted the school certain religious land-use exemptions, they banded together and sued, claiming the government had violated the establishment clause of the Constitution.
Mr. Roberts, joined by the Becket Fund for Religious Liberty, argued successfully that the city's actions were a permissible accommodation of religious exercise. Several religious groups, including the American Jewish Congress and the state ACLU affiliate, sided with Mr. Roberts and the school.
Becket Fund litigation director Derek Gaubatz cites the case as a valuable indicator of where Mr. Roberts, if confirmed, might lead the high court on free-exercise issues. "Accommodation of religious exercise is an important reaffirmation of the traditional American view of government, that God created and endowed each person with certain inalienable rights," Mr. Gaubatz said; John Roberts' "defense of the school properly recognized that."
From 1989 to 1993, Mr. Roberts worked as deputy solicitor general under Ken Starr, representing Bush 41 in appeals courts including the highest in the land. It was during that time that he helped craft the sentences on which anti-confirmation pro-aborts-and some hopeful pro-lifers-now hang their hats: "[W]e continue to believe that Roe was wrongly decided and should be overruled. . . . [T]he Court's conclusion in Roe that there is a fundamental right to abortion . . . finds no support in the text, structure, or history of the Constitution."
Almost before he and President Bush vacated the nomination podium on July 19, pro-abortion groups used those lines to brand Mr. Roberts an "extremist." Some pro-lifers, meanwhile, concluded from them that a Roberts confirmation will send Roe one step closer to the grave.
In reality, the brief "tells us very little about how Roberts might rule on abortion," said Andrew McBride, an attorney with Wiley, Rein and Fielding, who worked with Mr. Roberts at the Department of Justice. "His duty as deputy solicitor was to represent the view of the Bush administration. When he stood up in court that morning, he said, 'Your Honor, John Roberts for the United States,' not 'John Roberts for John Roberts.'"
Equally unenlightening in terms of his abortion views is another Roberts utterance bouncing around in the press: his affirmation during his 2003 confirmation hearings that Roe is a matter of "settled law" that he didn't see any problem upholding. Demonstrably pro-life judicial nominees-Miguel Estrada among them-have said exactly the same thing, since appeals court justices are called to uphold Supreme Court rulings (and, at times, dodge the bullets of hostile Senate Democrats).
It's good that Mr. Roberts has earned a reputation for upholding the law despite his personal views. In Hedgepeth v. Washington Metropolitan Area Transit Authority-the now infamous "French fry case" in which a 12-year-old girl was arrested, handcuffed, and jailed by transit police for eating a single fried potato on the D.C. metro-Mr. Roberts sided with the police. The opinion he wrote made clear that he felt the entire incident was ridiculous, as well as horribly traumatizing for the girl. But he also noted that the issue wasn't what he or anybody else thought, but what the law was-and transit police had acted within it.
Roe has been the law of the land for over 30 years. Thus, said Mr. McBride, the question for pro-life activists is not what Mr. Roberts wrote about Roe in an official brief three presidents ago. What's crucial are his views on stare decisis, the legal doctrine that says previous legal rulings have some weight in and of themselves-and whether, as a Supreme Court justice, he would or would not overrule an existing decision he felt was wrongly decided. Some jurists shy from turning back long-established precedent because doing so might disrupt "settled expectations" and the "development of law."
Mr. Roberts has yet to establish a record on stare decisis: A Lexis-Nexis search reveals that none of his 49 D.C. Circuit opinions mentions the doctrine.
Wherever he comes down, Mr. Roberts, if confirmed, will likely prove a high-court force to be reckoned with. First, he's "very, very smart," said his friend Dan Poneman, who used to grab lunch with Mr. Roberts when the two were partners at the D.C. law firm Hogan & Hartson. In lunch table chats, Mr. Roberts came across as an affable, dedicated family man who liked to trade vacation stories: "But when it came to discussing the policy issues of the day, it was very uncomfortable to be in a different position than John, because he would marshal his arguments with this laser-like ability to reason, and you were very hard-pressed to escape his logic."
Mr. McBride, meanwhile, doesn't think Mr. Roberts' short judicial history will hamper his former law firm colleague. In 2003, Mr. McBride argued Recording Industry Association of America v. Verizon Wireless, the first case Mr. Roberts ever heard on the federal bench. Right out of the gate, the new judge nailed his old friend with a tough question: "Isn't it true that your clients are encouraging and profiting from copyright infringement?"
"He wasn't shy at all," Mr. McBride remembers. "On the first argument he ever heard from the bench, he asked the very first question, even though the Chief Justice of the D.C. Circuit was presiding over the panel. He was immediately very comfortable with being a judge, like a fish to water."