Business as Usual with Judge Roberts

Unless they discover John Roberts dropped acid at Harvard or had been funneling insider stock tips to his wife, it looks as though he’s a shoo-in for confirmation as a member of the US Supreme court. In his last job in the private sector, as a partner at Hogan & Hartson, an elite DC law firm, his gross income in 2003 was $1,044,399.54, so his gamble in accepting a seat on the federal appeals court on the DC circuit has certainly paid off. Already he’s being talked up as maybe the next chief justice, replacing William Rehnquist, the justice he formerly clerked for.

Both the liberals and the Christian right had amassed colossal war chests of around $20 million, expecting a convulsive confirmation hearing stretching far into the fall. They’ll be hard put to spend the money, since Roberts’s footprints have purposively indistinct almost since he left the cradle.

His highest profile legal opinion came when he was Solicitor General Ken Starr’s deputy back in Bush Sr’s term. Roberts wrote a government brief arguing Roe v Wade had been wrongly decided and should be overruled. Always prudent, he later published a law review article in 1994, with a footnote that said: “In the interest of full disclosure, the author would like to point out that as Deputy Solicitor General for a portion of the 1992-93 Term, he was involved in many of the cases discussed below. In the interest of even fuller disclosure, he would also like to point out that his views as a commentator on those cases do not necessarily reflect his views as an advocate for his former client, the United States.”

Hearings for Sandra Day O’Connor’s replacement were scheduled to be the big late-summer spectacular, with blood in the water from the outset. The cable companies were licking their lips at a surge in revenues and journalists pumped for days of high- voltage action. Karl Rove was no doubt hoping that a savage confirmation battle would drive Plame-gate off the front pages. So there’s an unmistakable sense of anti-climax. The Weekly Standard crowd, to judge by executive editor Fred Barnes’ column, reckons it’s an okay nomination but that Bush could have done better, with some zealot like the madman J. Michael Luttig from the Fourth Circuit or Edith Jones from the Fifth Circuit, who has said straight out she want to see Roe v Wade overturned.

There’s similar, muted disappointment from Sandra Day O’Connor and, no doubt, from the First Lady, both of whom had said they wanted to see a woman replace O’Connor( presumptively one who would not overturn Roe v Wade.)

The libertarians rooted for Michael McConnell, now on the federal appeals bench on the Tenth circuit. But McConnell doomed himself in 2001, when he wrote a law review article disagreeing with the US Supreme Court ruling on the Florida challenge, not something that the Bush White House is likely to forget. Roberts, then a partner at Hogan & Hartson, was providing crucial legal and strategic advice to Jeb Bush on how to run the recount.

What is one to make of Roberts? He’s a Fifties-era Midwesterner, son of a Bethlehem steel executive, churchy and prudish. Already at Harvard he was gorging himself on chocolate chip ice-cream and gulping down bottles of Pepto-Bismol while quoting Samuel Johnson. This was in ’73 and ’74 when Pepto-Bismol was not the elixir of preference and Dr Johnson not your average law school student’s bedside reading. He’s fifty but he seems a lot older, and although people are reckoning that he could be still on the bench in 2035 those bottled-up Midwesterners have a tendency to swerve prematurely into the graveyard.

The prime lobby that should feel gratified by his nomination is of course Big Business, the protection of whose interests has been Roberts chief concern throughout his career, and the protection of whose interests has always been the prime concern of the US Supreme Court. Listen to the assessment of Boalt law professor and torture-defender, John Yoo: “Roberts is the type of person that business conservatives and judicial-restraint conservatives will like, but the social conservatives may not like. What the social conservatives want is someone who will overturn Roe v Wade and change the court’s direction on privacy. But he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they’re not out to change constitutional law.”

Already some seasoned court watchers are saying that Roberts should not be teamed up with the court’s two right-wing ultras, Scalia and Thomas, but with the corporate-oriented, pro-big government “center”, Kennedy and Breyer. Remember that in the court’s last two terrible decisions, on medical marijuana and eminent domain, Kennedy and Breyer were part of the majority that ruled against the former and in favor of business developers and the local governments that serve their interests.

Roberts’ record may be opaque when it comes to Roe v Wade but on corporate issues it’s as clear as daylight. When he was deputy solicitor general he ran the government’s case when the Supreme Court issued what was probably the most devastating ruling on environmental issues in the last generation. This was the Lujan v National Wildlife Federation decision in 1990. It tightly restricted the doctrine of “standing” which gives environmentalists the right to challenge destructive practices on federal lands.

It would be hard for Roberts to argue that he was just doing his job as a government lawyer. Returning to private practice from the Solicitor General’s office, he was swiftly picked as counsel by the National Mining Association, which had noted his victory in the Lujan decision. On behalf of the coal companies Roberts wrote a legal brief arguing that local citizens in West Virginia had no right to bring lawsuits challenging the most destructive form of mining ever devised, mountain-top removal. Later, going through confirmation to the Appeals Court, Roberts was asked what had been his most significant cases in private practice. In his response he proudly highlighted his work for the coal companies.

Then, only months after his appointment to the federal Appeals Court bench Roberts once again tried to promote corporate destruction in the Rancho Viejo v Norton case, where the federal Fish and Wildlife Service had made a ruling in favor of the endangered arroyo toad and against a California developer. The DC circuit court ruled 2-1 in favor of the toad, with Roberts as the minority vote. He had argued, vainly, that there was no federal interest because the toad “for reasons of its own, lives its entire life in California.”

In harmony with his pro-corporate tilt, Roberts’s wife, Jane Sullivan Roberts, is a very big-time corporate lawyer, specializing in the global communications sector. She works in a Democratic law firm, but we can safely assume this does not betoken acrimony over the Roberts’ morning ingestion of eggs and bacon, grits, hash browns, eased down by gulps of Pepto Bismol. They both serve the same corporate masters.



Jeffrey St. Clair is editor of CounterPunch. His new book is The Big Heat: Earth on the Brink co-written with Joshua Frank. He can be reached at: Alexander Cockburn’s Guillotined! and A Colossal Wreck are available from CounterPunch.