Bush’s high court pick faces immediate test of conservatism
WASHINGTON – It will not take long to determine if John Roberts will shift the Supreme Court to the right. Abortion, gay rights and assisted suicide are among the first issues the court will consider in the fall.Roberts was chosen by President Bush to replace Justice Sandra Day O’Connor, a swing voter who angered conservatives by supporting abortion rights and affirmative action in college admissions.She also joined the court’s liberal wing in cases involving gay rights and religion.In his two years as an appeals court judge, Roberts has not dealt with those subjects. He did, however, write on some of them during his days arguing Supreme Court cases on behalf of the first Bush from 1989 to 1993. His boss was conservative lightning rod Kenneth Starr, who headed the investigation that led to President Clinton’s impeachment.Those writings, and Roberts’ ties to conservative groups, indicate he will take the court to the right, said Kermit Hall, a historian and president of the State University of New York at Albany.”He solidifies the right spectrum of this court,” Hall said. “He is unlikely to be a swing vote.”Liberal groups seem most concerned with his role in helping draft anti-abortion arguments for the Bush administration in 1990, and a vote on the appeals court siding with developers in a fight over environmental rules. They worry he may end up being as conservative as Justices Clarence Thomas and Antonin Scalia.For the most part, Roberts’ two years on the appeals court have been uneventful. He has written 40 majority rulings; none of has been overturned and only two even produced a dissent. Most sided with the government.”He has not confronted too many issues that test profound questions at the center of public debate about the court,” said Richard Pildes, a New York University law professor.Pildes said Roberts has been a concise, speedy opinion writer, with special emphasis on following precedent and the facts of the case.As a new justice, Roberts would not be expected to have an immediate influential role in the court’s decision-making, which is done in private sessions. But he will be important because the court is so closely divided and often resolves the biggest cases on 5-4 votes.A day after Bush introduced Roberts, the Supreme Court released its lineup of arguments for this fall.If there are no hang-ups in Roberts’ confirmation, in his first week on the bench he will take up the administration’s challenge to Oregon’s unique physician-assisted suicide law. The case pits state authority against the federal government’s interest in regulating doctors’ prescription-writing.On back-to-back days in late November, the court will deal with two abortion cases, then an appeal involving military recruiters and the Pentagon’s policy of excluding openly gay people from service.In the last gay rights case before the court, O’Connor was part of a majority ruling in 2003 that found states cannot punish gay couples for having sex. The decision was seen as a watershed event in the gay rights movement.At the Justice Department, Roberts helped draft arguments urging the Supreme Court to allow public school-sponsored prayer at graduation ceremonies. The court rejected the government’s case.The court hears a religion case on Nov. 1 involving a church’s religious freedom claim to use hallucinogenic tea in its services. The last similar case, in 1990, was decided on a 6-3 vote so O’Connor’s departure probably would not affect the outcome.But Roberts could be an important vote in a challenge to a New Hampshire law on parental notification on abortions. O’Connor was expected to vote to strike down the law. The second abortion case involves protests.Patrick Schiltz, a friend of Roberts and professor at the University of St. Thomas School of Law in Minneapolis, said he does not think Roberts’ presence will have a dramatic impact.”We won’t wake up tomorrow and see whole lines of Supreme Court precedent uprooted,” he said.