In His Opinions, Nominee Favors Judicial Caution - New York Times

In His Opinions, Nominee Favors Judicial Caution - New York TimesJuly 22, 2005
In His Opinions, Nominee Favors Judicial Caution
By ADAM LIPTAK

A look at the 49 published opinions of Judge John G. Roberts, President Bush's nominee for the Supreme Court, reveals a distinct judicial philosophy, one that favors a strong executive, a cautious and self-effacing judiciary, limited federal power, and individual responsibility.

That aligns him in many ways with the conservative wing of the current court. But his insistence, in the two years he has sat on the federal appeals court in Washington, that judges must engage in considerable self-restraint could add a distinctive voice to a court that has not been shy in recent years in asserting its own dominance.

In a decision last year, Judge Roberts referred to "the cardinal principle of judicial restraint - if it is not necessary to decide more, it is necessary not to decide more."

He made the statement in joining a decision that the Drug Enforcement Agency had acted too aggressively in blocking the importation of ephedrine, which is used in both over-the-counter medications and methamphetamine. Judge Roberts said the majority's reasoning was too broad. "I cannot go along," he wrote of the majority's rationale, "for that gratuitous ride."

In other cases, similarly, he has shown himself to be a strict textualist, at least where legislation is concerned.

In a case concerning whether certain Navy officers had to testify in a discrimination suit, Judge Roberts chided the parties for not studying the plain words of a relevant law.

He said the lawyers' oversight reminded him of the three basic rules of statutory interpretation taught by Felix Frankfurter, before he was a Supreme Court justice, at Harvard Law School: "(1) Read the statute; (2) read the statute; (3) read the statute!"

Judge Roberts's court, the United States Court of Appeals for the District of Columbia Circuit, is generally considered the second most important in the nation, after the Supreme Court. But its docket is at once idiosyncratic and dull. It tilts heavily toward regulatory cases, claims by disgruntled federal employees and the odd criminal prosecution.

A typical case involved whether the Federal Communications Commission could require new televisions to include digital tuners. Even though neither side had seriously argued the point, Judge Roberts explored at length the possibility that the court was not authorized to hear the case because the plaintiffs had filed their challenge a day too early.

"As a court of limited jurisdiction," he wrote, "we take seriously any suggestion that we are without power to act - even one raised at the eleventh hour and not embraced as an argument but instead meekly noted." He determined that jurisdiction existed and that the F.C.C. could impose the requirement.

A Supreme Court justice's task often differs from that of an appeals court judge. Justices are in many cases concerned with the open-textured clauses of the Constitution rather than with the cascade of subparts and conditions in workaday legislation. And Judge Roberts's decisions give few hints about how he would interpret the majestic phrases of the Constitution, like "freedom of speech," "due process" and "equal protection of the laws."

If his statements about judicial restraint in his appellate decisions prove to be good guidance, though, Judge Roberts would add an approach "without any thoroughgoing representation on the current court," said Cass R. Sunstein, a law professor at the University of Chicago.

Laurence H. Tribe, a law professor at Harvard, said it would be easy to confuse the kind of restraint advocated by Judge Roberts with the pragmatic, case-by-case approach of the woman he aims to replace, Justice Sandra Day O'Connor.

Her approach often gave rise to no governing principle that could clearly be applied in future cases. Judge Roberts, on the other hand, has said that the courts must provide clear guidance.

"We have it on high authority," Judge Roberts wrote in a 2003 case chastising the Federal Aviation Administration for failing to follow its own precedents, "that the tendency of the law must always be to narrow the field of uncertainty." The authority he quoted was Oliver Wendell Holmes Jr., from his masterwork, "The Common Law."

In some ways, said Richard H. Pildes, a law professor at New York University, Judge Roberts's approach most resembles that of Justice Antonin Scalia.

"Like Scalia," Professor Pildes said, "he appears to be committed to a strong priority to the texts of statutes. And that might extend to the texts of the Constitution."

One theme that emerges from Judge Roberts's decisions is wide deference to executive power, at least where Congress has authorized it.

"The Supreme Court has consistently instructed that statutes written in broad, sweeping language should be given broad, sweeping application," he wrote last year, concurring in a decision that rejected claims against Iraq from American servicemen who had been tortured there during the Persian Gulf war.

A 2003 war appropriations law gave the new Iraqi government immunity, Judge Roberts wrote, and the complex canons of statutory construction, studded with Latin phrases, offered by lawyers for the former prisoners could not change that. "Give me English words over Latin maxims," Judge Roberts wrote.

Judge Roberts joined a decision this month allowing war crimes trials against suspected terrorists held at the naval base in Guantánamo Bay, Cuba, to resume. The decision, too, was a strong affirmation of executive power.

At the same time, Judge Roberts has indicated that he takes a limited view of the federal government's power. His clearest pronouncement was in a 2003 dissent in a case involving a federal regulation protecting arroyo toads as an endangered species.

"The panel's approach in this case," he wrote, "leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California" satisfies the constitutional requirement that Congressional power be used to regulate interstate commerce.

Professor Pildes said Judge Roberts's attitude toward federal power is similar to that espoused by Justice O'Connor.

"There is reason to believe," Professor Pildes said of Judge Roberts, "that he will be an aggressive scrutinizer of whether Congress has acted beyond its enumerated powers."

In some decisions, Judge Roberts took pains to say that there are many close questions in the law. Last year, he overturned an award of lawyers' fees to newsletter publishers who had successfully challenged an effort to license them under the commodities laws. The award of fees turned on the question of whether the government's position had been "substantially justified."

Judge Roberts said it had been. "Just as discovery of contraband does not establish probable cause," he wrote, "nor an accident negligence, nor poor returns an imprudent trustee, so too a loss on the merits does not mean that legal arguments advanced in the context of our adversary system were unreasonable."

In dissent, Judge Harry T. Edwards disagreed, saying the government's position had "bordered on the absurd."

In writings on and off the bench, Judge Roberts has bristled at efforts to punish people for the actions of members of their families.

Last year, in a case against the husband of a woman who defrauded the Department of Education of hundreds of thousands of dollars' worth of electronic equipment, the judge ordered him resentenced, saying he could not be responsible for all his wife's crimes.

The husband, Luther E. Mellen III, Judge Roberts wrote, could be faulted for helping his wife, Elizabeth, give his son from an earlier marriage a stolen laptop and for using some of the stolen goods she brought home. But there was no evidence that he had anything to do with the hundreds of other items she doled out to friends and relatives, the judge said.

"The government would have us find agreement from nothing more than the closeness of the Mellens' marriage," Judge Roberts wrote. "We think the government's resort to such arguments indicates the weakness of its case."

In his writings while a lawyer in private practice, too, Mr. Roberts objected to forfeiture laws that allowed police to seize jointly owned property in cases where one spouse was blameless. In a 1995 article in Legal Times, he took up the cause of Tina Bennis, who lost the car she owned with her husband after he was caught having sex in it with a prostitute. "Mrs. Bennis, not unreasonably, thought this was a bit much on top of everything else," Mr. Roberts wrote.

But the Supreme Court disagreed, ruling against Mrs. Bennis in 1996 by a vote of 5-to-4.

Judge Roberts has an eye for the absurd and an impatience with bureaucracy. He ruled in 2004 for an owner of an air taxi and pilot-training company in St. Louis who lost certification because of confusion over whether he had refused to take a drug test. Federal Aviation Administration regulations appeared to make the owner, Charles E. Duchek, responsible for informing himself of the date of a surprise random drug test.

"A sport such as golf can have a system of rules grounded on the assumption that participants will in good faith call penalties on themselves," Judge Roberts wrote in vacating the revocation, "but such an approach seems ill-advised when it comes to designing regulations to protect the public from drug use by those in safety-sensitive positions."

Judge Roberts showed less sympathy for Jake West, a "not especially frugal union president" convicted of embezzling $51,000 for golf vacations, dinners and home furnishings. Judge Roberts refused to allow Mr. West to withdraw a guilty plea in 2004.

And he was impatient that same year with Thomas Penfield Jackson, a trial judge who ignored sentencing guidelines in determining that Darin M. Tucker deserved probation rather than imprisonment for possessing cocaine. Judge Jackson declared that he was "not going to be an instrument of injustice."

That was unacceptable, Judge Roberts wrote. "To the extent the district court based the departure on its belief that the sentence was unjust," he wrote, "it relied on a factor that is clearly impermissible under the guidelines."