Roberts more conservative than O'Connor

With his nomination of Federal Appeals Court Judge John Roberts to succeed Sandra Day O'Connor, it appears that President Bush has fulfilled his desire to appoint a solid conservative to the Supreme Court. Roberts, however, seems more similar in style to Chief Justice William Rehnquist than to Bush favorites, Justices Antonin Scalia and Clarence Thomas.

So what does Roberts' appointment portend for the future of the Supreme Court? He has served on the D.C. Circuit for only two years, so his record as a federal judge is not well-established. Most of the discussion about him is based on his record as a clerk to Rehnquist, his work as a key adviser in the Reagan administration and especially his position as principal deputy solicitor general under President George H.W. Bush.

There are at least three important areas where Roberts likely would differ from O'Connor and could move the court in a more conservative direction.

Abortion

As deputy solicitor general, Roberts co-authored the government's brief in Rust v. Sullivan (1990), a case which upheld a federal law prohibiting family planning agencies that receive federal aid from providing abortion-related counseling or other services.

The government argued for the reversal of Roe v. Wade, contending that the Constitution does not support a fundamental right to abortion. In his confirmation hearings to the Circuit Court of Appeals, Roberts referred to Roe as settled law and assured senators that his personal views would not prevent him from fully and faithfully applying that precedent. As a Supreme Court justice, however, he would not be bound by existing precedent. At the very least, he is likely to uphold serious restrictions on abortion rights.

While O'Connor was part of a five-member majority that struck down Nebraska's partial-birth abortion law in 2000, Roberts probably would vote to uphold a similar federal ban if the case reaches the high court. If confirmed, he also likely will vote with the conservatives next term in a case challenging New Hampshire's parental notification law.

Church-state issues

While O'Connor joined the court's liberals in cases concerning government-sanctioned prayers at public school commencement ceremonies and football games and, most recently, in the Ten Commandments displays cases, she also voted with the conservatives in church-state rulings, including those that permit government funds to be distributed to religious schools, e.g., school vouchers.

In the commencement ceremonies case (Lee v. Weisman, 1992), Roberts co-authored the government's friend of the court brief urging the high court to uphold the prayer and to adopt an approach to Establishment Clause cases that would likely result in more decisions upholding substantial government involvement with religion.

Affirmative action

O'Connor authored the majority opinion in Grutter v. Bollinger (2003) upholding the University of Michigan Law School's affirmative action policy, and, in an earlier case, she emphasized that governments' carefully drawn affirmation practices may be constitutional. As an attorney in private practice, Roberts wrote friend of the court briefs for the Association of General Contractors, a group alleging that the U.S. Department of Transportation's minority contracting effort was unconstitutional.

This does not suggest that Roberts would shift the dynamics on all issues. In fact, his positions in federalism and commerce powers cases are likely to be quite similar to those of O'Connor: deference to state authority and limits on congressional powers under the Commerce Clause. Finally, the extent of Roberts' influence also will depend on future retirements and the persons selected to fill those vacancies. v

Joyce Baugh is a political science professor at Central Michigan University.