Getting Down to Cases: Part Three in a Series on the Kind of Case-Specific Questions the Senate Should Ask John Roberts

This column is Part Three in a series on whether, and why, Supreme Court nominees should have to answer Senate questions that seek nominees' views on specific past Supreme Court cases. The series builds on and develops some ideas suggested in an Op-Ed piece by the author in the New York Times on Wednesday, July 27. - Ed.

In Part One and Part Two of this series, I have argued extensively that the only way to get a sense of John Roberts's current legal views - and getting such a sense is, after all, the main point of his Senate confirmation hearings -- is to pressure him to assess actual past cases.

Such a course of action, I urged, is completely constitutionally and ethically permissible: So long as no promises or commitments are sought or given as to future votes on the Court, both Article III judicial independence and a meaningful Senate confirmation role can be preserved.

We should change the question from, "Can a nominee be forced to say whether s/he thinks an actual case was correctly decided?" to, "Which cases should we force a nominee to weigh in on, to best take the constitutional measure of (in this instance) the man?"

In today's column, I briefly identify and describe some of the key past cases on which I would want to question nominee Roberts, were I a member of the Senate Judiciary Committee. Every Court watcher is, of course, likely to have her own cases she thinks are most revealing and provocative.

With all due respect to the preferences of others, here is my top ten list:

Three of Roberts's Own Past Decisions He Should Be Asked To Elaborate On, At the Hearings

Surely, if we are to understand what kind of Justice he might be, Roberts must explain his own judicial writings and votes, written and rendered during his service on the U.S. Court of Appeals for the District of Columbia Circuit.

The opinion by Roberts that seems to be the most controversial thus far is his dissent from his court's refusal to rehear en banc the ruling in Rancho Viejo v. Norton. (En banc rehearing is a process by which all the judges in a Circuit court collectively rehear a case that has already been heard and decided by a three-judge panel.) In arguing in favor of en banc rehearing in this case, Judge Roberts suggested, at least, that some applications of the Endangered Species Act lie beyond federal Commerce Clause power, under existing Supreme Court doctrine.

This dissent raises a key issue: How broadly should we read Congress' authority under the Commerce Clause?

That issue has important practical - as well as symbolic - significance.

Roberts will be joining a Rehnquist Court that has made the (re)invigoration of state prerogatives and autonomy vis a vis federal power the centerpiece of its work.

Granted, Roberts's opinion in Rancho Viejo was not a ruling or vote on the merits - but rather only a suggestion that the whole court should reconsider the merits of the case. Yet the opinion does seem to read current Supreme Court cases very narrowly, as concerns Commerce Clause power.

Another of Roberts's own cases that is important to discuss is Hamdan v. Rumsfeld. There, Judge Roberts joined in an opinion that upheld broad Presidential powers to conduct military tribunal trials against non-citizens -- without any independent review of the Executive Branch's characterization of the accused persons as "unlawful combatants."

The opinion Roberts joined is especially troubling to some because it seemed to defer to the President's narrow interpretation of the Geneva Conventions and the rights they create that federal courts may enforce.

The Hamdan decision is thus important on its merits. It may also be important to the extent that it may undermine other statements that Roberts has made, in opinions and elsewhere, touting the virtues of judicial restraint and the importance of judges not deciding any more than is necessary to resolve the case at hand: The opinion reached issues that it did not have to, and had Judge Roberts disagreed, he might have chosen instead to concur separately on narrower grounds.

Perhaps, some people worry, Hamdan shows that Judge Roberts's notions of judicial modesty and incrementalism won't apply when claims of executive power are involved.

The third of Roberts's own cases that warrants some questions is Hedgepeth v. Washington Area Transit Authority - the infamous "french fry" case. There, Judge Roberts wrote a D.C. Circuit panel opinion rejecting a constitutional challenge brought by a 12-year-old girl who was seized and detained by DC police. Her incarceration was made pursuant to a policy mandating arrest of any minor who eats anything - in Ms. Hedgepeth's case, a lone french fry - in mass transit stations.

Of particular interest, in this case, is the way that Judge Roberts used - and didn't try to distinguish - the Supreme Court's Atwater v. City of Lago Vista ruling. There, the Court had upheld -- against a Fourth Amendment challenge -- an arrest of a Texas soccer mom who'd failed to seatbelt herself or her children in her pickup truck.

Some people think the two cases are easily distinguishable, and that Roberts's discussion of Fourth Amendment doctrine, principles, and cases seemed mechanical and wooden.

Seven Supreme Court Cases For Judge Roberts To Analyze At the Hearings

In addition to those three lower court rulings, here are seven Supreme Court decisions to round out my top ten cases. Note, especially, the 5-4 rulings where Justice O'Connor was in the majority; if Roberts replaces her, he may, in effect, alone control the decision whether to overrule these precedents.

On each of the following seven, I think we should be able - indeed, that we are entitled -- to hear Judge Roberts's views:

Grutter v. Bollinger (2003). Here, Justice O'Connor led four others in allowing the University of Michigan Law School to use race in admissions to assemble a diverse student body. To agree with the four dissenters is to condemn virtually all race-based programs. It is also to downplay or override the reliance that thousands of schools had placed on Justice Powell's opinion in the Bakke case 25 years earlier, which had embraced careful race-based diversity plans.

Given Judge Roberts's many public statements that seem to embrace a completely "color blind" reading of the Fourteenth Amendment, his views on Grutter may be very important. Pure quotas are not at issue here; the Court agrees they are illegal. What is at issue is whether an admissions officer may even look at a student's race, as a possible plus factor, in assessing her application.

Stenberg v. Carhart (2000). Another 5-4 ruling with O'Connor in the majority, Stenberg struck down Nebraska's complete ban on partial-birth abortions. Stenberg is an especially good vehicle to test Roberts's views on Roe v. Wade, because the Stenberg opinions lay out three distinct positions from which to choose - overrule Roe (Scalia, Thomas and the Chief); preserve Roe, but limit it to its narrowest core (Kennedy); or apply Roe's protections somewhat more generously (the majority).

If Judge Roberts were to disagree with the majority here, it seems Justice Kennedy's rule might govern: Roe would continue to be good law, but only its narrowest core holding would be preserved.

Nevada Dept. of Human Resources v. Hibbs (2003). In this case, Justice O'Connor joined five others to allow damage suits against States under the Family and Medical Leave Act (FMLA). The five in the majority held that the FMLA's authorization of such suits was a valid exercise of Congress' Fourteenth Amendment power to remedy gender inequality.

Hibbs is in great tension with earlier Rehnquist Court rulings sharply limiting Congress' Fourteenth Amendment authority - indeed, to my mind, it effectively guts Board of Trustees of the Univ. of Alabama v. Garrett.

Hibbs is particularly intriguing and a good case to discuss because it lies at the intersection of the "new federalism" (which is it quite clearly Judge Roberts supports) and women's rights - on which his views are not entirely clear. Indeed, Judge Roberts has said some things in some contexts that raise doubts about how much he thinks the Constitution safeguards gender equality.

Not only should the hearings delve into Judge Roberts's views on what the Constitution says about gender equality, the questions should also probe whether he believes Congress can go farther in protecting liberties than what the Equal Protection Clause requires.

Atkins v. Virginia (2003). Here, a six-Justice majority (including O'Connor) held that execution of mentally-retarded criminals violates the Eighth Amendment's ban on cruel and unusual punishment. The various opinions address how fixed in time the meaning of the Constitution is, how legitimate it is for Justices to independently assess the proportionality of punishments, and how relevant foreign legal norms are in domestic constitutional rights.

This ruling won't be up for grabs even if Roberts sides with the dissenters, but his comments on it may well shed light on his Eighth Amendment views - which will be key to how he might view death penalty cases that arise down the road.

McCreary v. Kentucky (2005) Justice O'Connor joined four others to strike down Kentucky's display of the Ten Commandments, in its courtrooms. To embrace Justice Scalia's dissent is to abandon any requirement of government "neutrality" toward religion, and to permit significant government promotion of Christian monotheism. And if Roberts does share Scalia's view, his vote could change the result in this, and other Establishment Clause cases that closely split the Court.

Mitchell v. Helms (2000). Like McCreary, this is another important Establishment Clause case, and one in which Justice O'Connor provided the key swing vote. Here, a fractured Court upheld a federal program that distributed funds to state and local governmental entities, which in turn used the funds to loan educational materials and equipment (such as books and computers) to public and private schools, including some private parochial schools. Justice O'Connor's concurring opinion (which accounted for the result) made clear that, notwithstanding the neutrality of a particular funding program, grants of direct aid simply cannot be used for religious purposes.

According to Justice O'Connor, allowing direct aid to be used to finance a religious institution's religious mission -- as distinguished from its secular functions -- violates Establishment Clause prohibitions. If Judge Roberts tells us what he thinks of Justice O'Connor's opinion in Mitchell, he tells us a lot. This case's ruling is potentially relevant to a number of ways in which the Bush Administration, and future Administrations, may seek to support faith-based programs, drawing an important line as to when such support exceeds Establishment Clause limitations.

Seminole Tribe v. Florida (1996). In this seemingly technical Eleventh Amendment dispute about whether States can be sued in federal courts, Justice O'Connor joined four others to rein in Congressional power, and to protect state prerogatives -- even though the text of the Constitution would indicate otherwise.

The case thus tests, among other things, how committed Roberts may be to textualism as a consistent methodology. If Roberts agrees with O'Connor, the result won't change, but his view on the case will still shed light: To agree with this ruling is to be willing, at least in some contexts, to diverge far from the text of the Constitution.