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.