WASHINGTON – As one of Washington’s top appellate lawyers, Supreme Court nominee John Roberts represented big business against employee claims, coal companies against polluted communities, and contractors seeking an end to government race preference programs.
But Roberts also defended a town’s right to prevent development on private property, fought for indigenous people’s rights to self-determination, and – for free – helped welfare recipients who feared losing their benefits.
Viewed through a political prism, Roberts’ record seems to lack any particular ideological bent. So what, if anything, are Americans likely to infer from Roberts’ legal career about his views, in advance of the fight over his nomination to the Supreme Court?
One court watcher puts it simply: “The answer is both too much, and too little,” said George LaNoue, a political science professor at the University of Maryland, Baltimore County, who once worked on a case that Roberts was handling.
“Of course, an organization looking for an appellate lawyer is going to choose someone who will both understand the case and be sympathetic to their side, so that tells you something. But you can’t attribute every sentence from the arguments in a given case to the lawyer who handled it, because they’re ultimately just representing their client. It’s the client’s position, not theirs, that they’re advocating.”
But Roberts’ choice to represent clients of many political stripes does shed light on his approach to the law – and paints him in stark contrast to some of the other justices already on the high court.
Justice Antonin Scalia, for example, spent most of his legal career as a law professor and government lawyer whose prolific writing and speeches helped guild the modern conservative legal establishment. Justice Ruth Bader Ginsburg spent much of her career as the nation’s leading legal advocate on women’s issues.
Their work was steeped in their ideologies, and highly reflective of their views of how the Constitution ought to be interpreted.
But as a hired advocate, Roberts has mastered building arguments on all sides of the political spectrum and avoids easy labeling.
“He’s very much a lawyer’s lawyer,” said Barbara McDowell, director of the appellate practice at the Legal Aid Society in Washington, who has worked on two cases in which Roberts was involved, once on the same side and once in opposition.
“He is very practical-minded. This work requires mastering a lot of detail, and searching for the common-sense approach to things.”
In that way, McDowell said, he is like the person he would replace on the court, Sandra Day O’Connor.
“It’s not unlike the approach she took to cases on the bench,” McDowell said.
Any examination of Roberts’ work as an advocate has to begin with his stunning numerical achievements.
He argued 39 cases before the Supreme Court, winning 25. There aren’t many other advocates in Washington who can claim a similar record, either by volume or success. Some court watchers call Roberts, 50, the premier appellate attorney of his generation.
His reputation is undoubtedly as a conservative advocate, though, and that is reflected in the bulk of the cases he handled while at Hogan & Hartson LLP, a high-powered law firm with lawyers across the political spectrum.
Roberts represented the American General Contractors, writing briefs for the organization that pushed for an end to affirmative action programs in two cases involving the Department of Transportation and Department of Defense. Roberts represented coal companies fighting to avoid paying retirement benefits to employees and seeking to avoid expensive reclamation projects in communities where they mine.
He represented Toyota Motor Manufacturing when it sought to deny that the Americans with Disabilities Act required it to accommodate a worker who had developed carpal tunnel syndrome.
But Roberts also took cases that required him to advocate positions inconsistent with conservative views of the Constitution.
In 2000, Roberts represented a native Hawaiian group before the Supreme Court seeking to exclude other ethnic groups from voting for trustees of an agency that oversees programs for those of Hawaiian ancestry. On the other side were conservative legal icon Robert Bork and Theodore Olsen, who would go on to serve as President Bush’s chief legal advocate at the high court.
The court ruled against Roberts’ clients, with the liberal bloc of justices dissenting.
In a 2002 case that decided whether a planning agency in the Lake Tahoe Basin could prevent development on private land without it being considered a property “taking” for constitutional purposes, Roberts represented the side that conservatives opposed. He convinced the court to side with him – while conservative Justices Scalia and Clarence Thomas and Chief Justice William Rehnquist dissented.
Roberts’ involvement in such cases is explained most simply by his job description: Lawyers take clients who hire them. And they have an ethical duty to represent those clients to the best of their ability, no matter their personal views.
But Roberts’ experience in that arena would serve him well on the high court.
“A strong appellate attorney has to understand the interconnectedness of things, and appreciate the deep, sometimes divisive policy issues that go into deciding how a set of facts lead to an outcome,” said Norm Ankers, who went to Harvard Law School with Roberts and now heads the trial division of the Honigman, Miller law firm in Detroit. “That’s also what a good appellate judge will do.”
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