Looking at Roberts' Record Before the Court

In his career as a lawyer, Supreme Court nominee John Roberts argued almost 40 cases before the nation's highest court. With the help of some archival audio, Nina Totenberg looks at the arguments he made.

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In Washington, DC, on Capitol Hill more meetings today for Supreme Court nominee John Roberts. Senators are trying to get a sense of what sort of justice Roberts would be. A judge for only two years, he has spent the bulk of his career as an appellate advocate in public service and in private practice. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

Some say that John Roberts is the finest appellate lawyer of his generation. He's argued 39 cases in the US Supreme Court, winning the majority of them. The handful of lawyers who might reasonably be called his competitors say remarkably the same things about his style. Here, for example, is Ted Olsen, who served as the Bush administration's chief advocate in the Supreme Court for four years.

Mr. TED OLSEN (Supreme Court Advocate, Bush Administration): He has a very soft-spoken, conversational tone and demeanor so that when he is arguing, it is as if he is having a conversation with the justices and they like that. They don't like to be read to or preached to or orated at. They like to have a conversation and John was perfect at that.

TOTENBERG: And here's Walter Dellinger, who served in the same position in the Clinton administration.

Mr. WALTER DELLINGER (Supreme Court Advocate, Clinton Administration): He's very conversational with the court without being too informal. His arguments are always directly engaging the justices and never his own oratory.

TOTENBERG: With help from Northwestern University law professor, Jerry Goldman and his Web site oyez.org, it's easy to relive many of Roberts' arguments before the Supreme Court, including one involving the hot button issue of abortion. The year was 1991. Roberts was serving as deputy solicitor general. The question before the court was whether the federal civil rights laws provided power to the federal courts to protect abortion clinics from massive demonstrations that blocked access for women seeking abortions. Representing the first Bush administration, Roberts told the court that opposition to abortion does not constitute discrimination based on gender and thus is not covered by the laws barring gender discrimination.

Judge JOHN ROBERTS (Supreme Court Nominee): Here, petitioners do not seek to deny to someone what they would permit to others. They seek to prohibit the practice of abortion altogether. Respondents bring up the analogy that opposition to women seeking abortions is just like a conspiracy against blacks seeking to vote. If you examine the analogy closely, it breaks down. In the conspiracy against blacks seeking to vote, what animates it is opposition to a group on the basis of race. It is blacks that they do not want to vote. It's not opposition to the activity of voting. Here it is solely opposition to the activity of abortion.

TOTENBERG: `But supposing that 2,000 people were massed at a clinic,' a justice asked, `wouldn't that be a conspiracy to deprive women of exercising their fundamental right to an abortion?' `No,' replied Roberts.

Judge ROBERTS: There was simply no class-based animus.

TOTENBERG: Roberts won the case by a 5-to-4 vote. In a case involving the beating of a state prison inmate, Roberts, again representing the federal government, faced a skeptical Chief Justice Rehnquist in arguing that the prisoner had been subjected to unconstitutionally cruel and unusual punishment.

Judge ROBERTS: The petition, while cuffed and shackled, was punched in the eyes, the mouth, the chest, the stomach, kicked from behind. He sustained bruises, swelling, split lip, cracked...

Chief Justice WILLIAM REHNQUIST: Mr. Roberts, what about a case in which a prisoner claims to have simply suffered mental suffering as a result of some action taken by the prison authorities?

Judge ROBERTS: I don't think we can categorically exclude such claims. It is easy to imagine cases of mental torture that would qualify under the Eighth Amendment, prison guard pretending to partially load a revolver and then playing Russian roulette with the inmate. I think that would be the infliction of pain unnecessarily and wantonly.

TOTENBERG: Roberts won that case, too, this time by a 7-to-2 vote with Justices Clarence Thomas and Antonin Scalia in dissent. He lost another prisoner case, though, in 1993, a case testing whether an inmate could sue for cruel and unusual punishment if he was subjected to life-threatening secondhand cigarette smoke from other inmates. In this case, Roberts was arguing in support of prison officials who asserted such exposure was not cruel and unusual punishment.

Judge ROBERTS: What this court has asked in its condition of confinement cases is whether there has been a, quote, "serious deprivation of basic human needs" or a denial of the quote, "minimal civilized measure of life's necessities."

TOTENBERG: The court wasn't buying that argument. `Would it be permissible,' asked a justice, `to require inmates to drink toxic water?'

Judge ROBERTS: The difference is that as a society, we don't accept or tolerate the notion that everyone will drink water that's going to make people sick within 30 days. We do accept and tolerate the condition that people are exposed to secondary tobacco smoke.

Unidentified Justice: What about asbestos?

Judge ROBERTS: We, as a society, don't treat exposure to asbestos as a matter of personal preference. When we go to a restaurant, they don't ask, `Do you want the asbestos section or the non-asbestos section?'

TOTENBERG: The court, however, concluded that prisons are unlike restaurants because in prison, the inmate has no control over where he lives. The vote against Roberts was 7-to-2 with Justices Thomas and Scalia, again, in dissent. As a private lawyer, Roberts often represented large corporate interests. Three years ago, he represented HMOs in a challenge to state laws that require an independent medical review when a patient and her doctor assert that a denied service is medically necessary. Roberts argued that the federal law bars such state regulation.

Judge ROBERTS: Medical necessity is a question of judgment. Some people are going to view it differently. We want to make clear that it's our discretion that controls.

TOTENBERG: Roberts lost that argument by a 5-to-4 vote. In another case in which he represented large corporate interests, Roberts argued for Toyota seeking to limit the accommodations the company must provide to injured workers under the Americans With Disabilities Act. Roberts argued that the worker in this case wasn't disabled just because she couldn't perform most assembly line jobs anymore. She could, however, qualify for jobs elsewhere in the work force and could perform basic tasks at home. That prompted this question from Justice Stephen Breyer.

Justice STEPHEN BREYER: So why can't this woman here say, `I cannot lift more than 20 pounds ever. I cannot lift more than 10 pounds frequently. I cannot perform repetitive motions with both hands over an extended period of time. And I cannot work with my hands above my head. No, that's the problem. It makes it hard for me to find a job.'

Judge ROBERTS: The record shows she can take care of personal hygiene. She can do chores around the house.

TOTENBERG: `And,' said Roberts, `there are some jobs she can do.' He won the case by a unanimous vote. While most of Roberts' clients were large businesses, not all were. In 1989, he was appointed by the Supreme Court itself to represent an indigent man sentenced to prison for filing false Medicare claims that totaled $585. Afterwards, the government brought a second case, a civil case seeking a fine of $130,000 for the same conduct. Roberts argued that the civil case was an unconstitutional second trial for the same crime. The government said that the $130,000 was merely repayment for the cost of prosecuting the case.

Judge ROBERTS: The facts belie that contention. A $130,000 recovery cannot be dismissed simply as compensation for $585 in damages. Nor is the answer any different if the government's costs of investigation and prosecution are factored into the equation. The district court concluded that $16,000 would fully compensate the government for all its costs.

TOTENBERG: Roberts won the case by a unanimous vote. Win or lose, though, Roberts is known as always gracious. Walter Dellinger remembers the first case he argued in the Supreme Court, a case in which he argued against Roberts, then the deputy solicitor general. Dellinger remembers that he got word of his victory, not from the court clerk.

Mr. DELLINGER: The first notice I had came from a call from John Roberts, called to congratulate me and tell me that I had prevailed, which I thought was unusually nice gesture from an opposing counsel.

TOTENBERG: Nina Totenberg, NPR News, Washington.

MONTAGNE: This is MORNING EDITION from NPR News.

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