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Analysis: Roberts' arguments before high court eliciting attention

Pittsburgh Post-Gazette
Wednesday, July 27, 2005
Michael McGough



WASHINGTON -- On Oct. 16, 1991, Deputy U.S. Solicitor General John G. Roberts Jr. found himself in an unenviable spot for an advocate: being accused by a Supreme Court justice of inconsistency.

In arguing on behalf of the administration of then-President George H.W. Bush that Operation Rescue activists could not be sued under a 19th-century federal civil rights law for blocking a Virginia abortion clinic, Roberts had cited the court's 1973 decision in Doe v. Bolton. In that case, the justices had struck down a Georgia abortion law, in part because its restrictions on women from other states violated their constitutional right to travel.

The purpose of Roberts' citation was to demonstrate that Operation Rescue's tactics did not violate the right to travel because they targeted all women seeking abortions at the Virginia clinic -- not just women from out of state.

But Justice Harry Blackmun, the author of the 1973 Roe v. Wade decision legalizing abortion, pounced on Roberts. Doe v. Bolton, Blackmun pointed out, was the companion case to Roe, which, Blackmun noted, the Bush administration in the past had asked the court to overrule.

"Are you asking that Roe v. Wade be overruled?" Blackmun asked Roberts. He replied, "The issue doesn't even come up."

"That hasn't prevented the solicitor general from taking that position in prior cases," Blackmun persisted. "There have been four in a row."

After Roberts reiterated that "the right to abortion is not implicated here," Blackmun chided him: "It seems to me you've slipped a stitch somewhere."

Roberts, keeping his cool, declined to get into an argument on the point with Blackmun. Eventually, the court ruled 6-3 in favor of Roberts' position, with Blackmun among the dissenters.

Roberts' court appearance in the Operation Rescue case was one of 39 occasions on which he has argued before the nation's highest court, and it illustrates an aspect of his career as a practicing lawyer that some observers see as offering clues about how he himself would behave as a justice.

Roberts on this occasion was more devoted to the case than to the cause. Yes, his employer, the Bush administration, had maintained in the past that Roe v. Wade should be overturned. But repeating that request in this argument was unnecessary and might be counterproductive. Moreover, Roberts was willing to cite a precedent that served his immediate purpose, even if it was at odds with a prior position taken by his client.

With only two years on the U.S. Court of Appeals for the District of Columbia Circuit and no "paper trail" of controversial speeches or law-review articles, Roberts has seen his career as a Supreme Court litigator become a focus of attention.

Some of his critics, pointing to the large number of corporate interests he represented before the court, say his clientele suggests that he would be out of touch with the needs of ordinary Americans. But other observers of Roberts' career believe that his history as an agile advocate, not only for the solicitor general's office but also for private clients, will enable him to see both sides of an issue as a justice.

"The fact that he argued so many cases presumably means that he will be receptive to argument," said Edward B. Foley, an Ohio State University law professor who served as a Supreme Court law clerk. "As an advocate, you want a court that is receptive; you don't want to be talking to a wall. I think that once Roberts is on the court, he will be listening and really trying to figure out what the lawyers are trying to say."

Carl Tobias, a University of Richmond law professor, said there was no guarantee that a longtime advocate -- even one who, like Roberts, has represented diverse clients -- would be an open-minded justice. Still, he said, "there's some value in the fact that Roberts has had a mix of clients and apparently has argued both sides on certain issues. I think that's a good thing.

Roberts himself, during Senate confirmation hearings for his seat on the appeals court, said he did not have an "overarching, uniform philosophy" in interpreting the U.S. Constitution.

"My practice has not been ideological in any sense," he said then. "My clients and their positions are liberal and conservative, across the board." He added that, as a lawyer, he had been able to "set aside any personal views and discharge the professional obligation of an advocate."

Of course, a Supreme Court justice is not an advocate, but instead an arbiter, and not everyone believes that Roberts' ability to see both sides of an issue as an attorney will translate into a lack of dogmatism on the bench.

Trying to gauge the depth of Roberts' conservatism is the purpose of the request for documents from his service in the Reagan and first Bush administrations and the quest to determine whether and to what extent Roberts was involved in the Federalist Society, an influential group of conservative and libertarian lawyers and law students.

Douglas T. Kendall, executive director of Community Rights Counsel, a public-interest law firm in Washington, said he was "very worried" about how Roberts as justice might rule on issues of interest to his group, such as requirements for legal standing in environmental lawsuits.

But he said his views on Roberts are mixed, because of the nominee's successful defense of a Lake Tahoe planning agency against a claim that its restrictions on overdevelopment amounted to an unconstitutional "taking" of property. The Supreme Court agreed with Roberts, and his argument swayed "swing" Justices Anthony Kennedy and Sandra Day O'Connor, Kendall noted.

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