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Roberts' record suggests belief in restrained judicial conduct

WASHINGTON—At his appeals court confirmation hearings in 2003, John G. Roberts described federal courts as having to strike a delicate balance as the only unelected branch of government in a nation that cherishes democracy.

Courts shouldn't be so inactive that they abdicate responsibility to interpret the Constitution, he said. But they have to resist overreaching judicial activism.

His own approach?

A look at his 2003 testimony and the opinions he's issued as a judge since then suggests he embraces a conservative judicial restraint that evokes an approach that has largely been absent from the Supreme Court for decades. If Roberts employs a restrained judicial outlook once he's confirmed, he'll probably disappoint both liberals and conservatives who look to the court for consistently favorable political results.

"We don't really have anyone on the court now with restraint," said University of Pennsylvania law professor Nathaniel Persily. "The court's more liberal wing is pushing an agenda that reads rights into the constitution, and the conservatives have been doing the same, expanding notions of property rights while cutting back on the reach of Congress. If he's a justice in the more restrained tradition, the court would be well served."

Persily cautions that it's not easy to predict what a judge, who's bound by Supreme Court precedent, might do once he's on the high court, where he has a chance to push the bounds of constitutional interpretation. And he said some of Roberts' scant track record as a judge—he's written just 49 opinions—suggests he's not averse to pushing the limits.

But on balance, court historian David Garrow said, "there's every indication that Roberts is not an ideologue or an activist."

"If the president had wanted to pick someone like that, he had choices available. This guy doesn't look like he's going to overturn any apple carts," he said.

Roberts defies comparison to current justices, and might be closest to jurists of the past. Felix Frankfurter, for example, was a liberal appointee of President Franklin Roosevelt who earned a reputation as one of history's chief advocates of a limited role for the court.

Roberts, who in private practice was one of the most prolific and successful advocates at the Supreme Court, also could share traits with two other great litigators who sat on the court: Lewis Powell and Thurgood Marshall.

"I think there is a pragmatism and eclecticism that comes from playing that role," said Mark Rahdert, a Temple University law professor. "They weren't wedded to any pet theory or methodology. Their job was to kind of figure out what works, and borrow from a variety of different sources to get the job done."

Some say Roberts, who clerked for Justice William Rehnquist before he became chief justice, might most closely resemble a lower-court judge he also clerked for, Henry Friendly. A renowned chief judge of the 2nd U.S. Circuit Court of Appeals, Friendly was "the ultimate pragmatist," Rahdert said. "He had a strong view of judicial restraint."

Roberts has been a judge for only two years, and his seat is on the U.S. Court of Appeals for the District of Columbia Circuit, an unusual appellate bench whose docket rarely includes cases involving hot-button social issues.

In most of his rulings, which turn on fine legal questions about the scope of government power, Roberts demonstrates a preference for rulings that avoid sweeping pronouncements about ideology or constitutional theory and stick to the facts at hand.

His rulings are restrained in his view of what the courts should or shouldn't be deciding and in what role he thinks judges should play in pushing the bounds of the law.

Without question, his view of a limited role for the courts—and other branches of the federal government—is likely to produce results that many Americans would describe as politically conservative. He's resisted broadly interpreting civil and individual rights, and has voted to limit the scope of federal power to affect business regulation or environmental protection.

Roberts has written that Americans who were POWs in Iraq couldn't access federal courts to sue their captors. In a case that's gotten a lot of attention from environmentalists, he rejected what's considered the strongest constitutional rationale for Congress' ability to protect endangered species.

But his approach could just as likely disappoint conservatives who hoped President Bush would deliver a justice who would pursue their social agenda. Roberts seems unlikely to embrace the "strict constructionist" brand of constitutional interpretation the president says he admires.

Roberts said in 2003 that he found that approach helpful sometimes, but not always. He said he didn't adhere to any particular school of constitutional interpretation.

"I just don't feel comfortable with any of those particular labels," Roberts said. "I don't necessarily think it's the best approach to have an all-encompassing judicial philosophy."

Roberts also hasn't indulged efforts to wipe away the expanded notions of individual and civil rights that have evolved.

There's a consistency to his views that often defies categorization, seeming to speak to a steady judicial outlook that has less to do with results than reasoning.

Roberts told the Senate in 2003, for example, that the idea of a right to privacy, the foundation for Roe v. Wade, the landmark 1973 abortion case, goes back much farther in American law than most people think.

That isn't an answer you'd probably get from court conservatives such as Justice Antonin Scalia or Rehnquist, who've been critical of that right. For many conservative thinkers, the constitutional right to privacy, which doesn't appear in the text of the Constitution, is the hallmark of liberal court activism.

"I see a lot of evidence in the record that Roberts is a true conservative, someone who believes in traditional restraint on the federal government and the courts," said Doug Kendall, the executive director of the Community Rights Counsel, a nonprofit law firm that handles environmental cases.

Kendall said he was concerned about Roberts' opinion questioning the basis for the Endangered Species Act, but encouraged by his participation as a private lawyer in a case that the Community Rights counsel handled, and won, at the Supreme Court.

"I have a mixed view of his record, but there's not much there to say he's an activist."

Rahdert said there were two key questions for Roberts:

"How fixed or open is his mind? And how carefully does he draw the line between his personal beliefs and his role as a judge? Some of the best justices have had open minds and a clear understanding that their personal views aren't the law."

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(c) 2005, Knight Ridder/Tribune Information Services.

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