JOHN ROBERTS: First, I think it's important to clarify what it is that we did and what we did not do.
KWAME HOLMAN: In 1991, John Roberts was a 36-year-old deputy solicitor general in the first Bush administration's Justice Department. On the NewsHour, he defended the Department's position that a federal court in Kansas had erred in its decision that barred the anti-abortion group Operation Rescue from blockading abortion clinics.
JOHN ROBERTS: What we did not do is take a position supporting the activities of the Operation Rescue protesters. There's been some confusion about that, and I want it to be clear.
In fact, what our U.S. attorney out in Kansas said in a very firm statement was that everyone must comply with the court orders and that the U.S. marshals, officers of the Department of Justice, would enforce the court orders. That needs to be clear.
Second, we filed a brief with the court sending him a copy of a brief we filed in April in the Supreme Court in a related case -- it didn't cause much of a commotion back then -- explaining that the law under which the abortion clinic providers and patients were suing the demonstrators did not apply in this case and did not give the federal court jurisdiction.
The law is called the Ku Klux Klan Act of 1871, and that conveys a pretty good idea about what the law was intended to do. It was directed against people going out, trying to interfere with the constitutional rights of blacks.
The Supreme Court indicated in a 1971 decision that the law was limited in that way. It did not apply across the board to any kind of demonstration. It may or may not apply to demonstrations directed against women. But people who are against abortion are not discriminating against women. It's a different issue.
KWAME HOLMAN: Roberts argued the abortion clinic case belonged in state, not federal court.
JOHN ROBERTS: The plaintiffs are free to repair to state court, where they should have brought this case in the first place, at any time, and if an injunction is appropriate, to secure an injunction from that court. The state court is there to protect the rights of the abortion clinic providers and their patients according to law.
I think the Supreme Court has made clear and our constitutional system is based on confidence that the state courts, the state Supreme Courts, with review in the United States Supreme Court, will defend our liberty.
KWAME HOLMAN: Roberts later made those same arguments before the Supreme Court in a related case, Bray vs. Alexandria Women's Health Clinic. The court agreed with him, ruling six to three against the abortion clinics.
Interviewed by the NewsHour's Charlayne Hunter-Gault in 1995, Roberts, in private practice, discussed a Supreme Court brief he had filed in support of a white businessman challenging a federal minority contracting program.
The court ruled 5-4 in favor of Robert's position, saying affirmative action programs should not be applied to government contracts unless there was specific past discrimination.
JOHN ROBERTS: The important thing about the case today is that this was a government contract, and the lowest bidder didn't get it. It went to someone else, and it went to someone else because of that person's race. And what Justice O'Connor said in the opinion for the court today is that the Constitution requires government to treat people as individuals, not as members of a particular racial group.
The government has to act on the basis of who people are, not what they are. And that's a very powerful principle. It's the principle of equal protection. As Justice Scalia put it in his concurring opinion, as far as the government is concerned, we are all one race: American.
KWAME HOLMAN: Roberts responded to the concern the ruling would encourage white contractors to choose to work only with those they are comfortable with and diminish opportunities for minority subcontractors.
JOHN ROBERTS: It's not a question of who they're comfortable with. It's a question of who provides the best product at the best price. And government contracting requires adhering to those principles, and if firms are not being considered because of the race of the owner, that's racial discrimination; that's against the law.
It can be prosecuted, and you can bring lawsuits on the basis of it, and those people are entitled to full relief. All this is saying is we don't give preferences -- we don't give benefits on the basis of race. That violates equal protection.
KWAME HOLMAN: Roberts acknowledged that discrimination was a problem in government contracting.
JOHN ROBERTS: I certainly accept the fact that there is discrimination in the contracting industry and many others. The question is: How do you go about curing that? And what the Supreme Court said today is that you don't overcome racism by engaging in it yourself.
But when you start, no matter how good the intentions are -- and no one questions the good faith of people who are supporting these programs -- but that when the government gets into the business of drawing lines on the basis of race, it's in a dangerous area and should only do it if that program can satisfy strict scrutiny.
KWAME HOLMAN: During the summer of 2000, Roberts, still in private practice, appeared on a program on Dallas TV Station WFAA to talk about Supreme Court decisions handed down during that year's term. They included prohibiting prayer at public high school football games and rejection of a state ban on so-called "partial-birth abortions."
CARL LEUBSDORF: Looking back at the recently completed Supreme Court session, what do you think were the most important things that it did?
JOHN ROBERTS: Well, as a ... taking this term as a whole, I think the most important thing it did was make a compelling case that we do not have a very conservative Supreme Court. Take the three biggest headline cases -- you know, Miranda, school prayer, abortion -- the conservative view lost in each of them.
CARL LEUBSDORF: Now, how can that be after we have nine justices, of whom seven were appointed by Republican presidents, and only two by Democratic presidents?
JOHN ROBERTS: Well, it's an old story that the appointees, once they're on the court they tend to go their own way, and it's not always the way that the presidents who appointed them predicted would be the case.
KWAME HOLMAN: Roberts talked about the court's decision to prohibit student-led prayer at high school football games.
JOHN ROBERTS: I think the argument about government-sponsored, government-initiated prayer in schools is over, but that's not necessarily all that we're talking about.
The test, as I see it is, is the prayer is genuinely student-initiated, student-led and does not look like something the government, the school district is sponsoring, then it's going to be all right. But if the government is involved either in initiating it or sponsoring it, then you run into trouble.
The real problem with the prayer before -- the invocation before the football game case was that it had a history, and the history was that the school appointed a student chaplain and that student chaplain led the fans, in that case, in prayer.
And when they changed that because of concern about constitutionality, the court said, no, this is still part and parcel of the same school-initiated, school-sponsored prayer.
You have a situation where it's not school-initiated and school-sponsored, but it's the students themselves or groups of students themselves who are engaging in prayer or religious activity; that's an entirely different question.
KWAME HOLMAN: Roberts also was asked whether the close 5-4 ruling in the so-called "partial-birth abortion" case suggested the court was on the verge of overturning Roe vs. Wade.
JOHN ROBERTS: Oh, I don't think that's -- I don't think that's right, and you have to read, just read Justice Kennedy's opinion to understand that.
What he's saying is this is different from the basic right to an abortion and, therefore, I'm on the dissent. That doesn't suggest that he's going to abandon his position, which has been supporting the basic right to an abortion. So I think it's -- that right is protected right now by more than just one vote.
KWAME HOLMAN: The discussion was held four months before the 2000 presidential election, and Roberts was asked what impact nominees of Al Gore or George W. Bush would have on the court.
JOHN ROBERTS: Well, you know, it's hard to tell because you never know if the nominees that they select are going to carry out any particular point of view or if, as has been the case with many nominees in the past, they chart a different course.
But the fact of the matter is we do have a court with several members who are -- have served for a long time, and depending upon which ones of those step down and who is appointed in their place, it could well make a difference.
KWAME HOLMAN: Five years and a few days after that broadcast, the "who" would become John Roberts himself.
MARGARET WARNER: So what can we discern about John Roberts' judicial philosophy from those television appearance and the many pages of writings, now public, from his years as government lawyer, private attorney and judge?
To explore that, we turn to two legal scholars who've studied the record: Douglas Kmiec, a professor of constitutional law at Pepperdine University -- he worked with Roberts when both were lawyers in the Reagan administration; and Peter Rubin, a professor at Georgetown University's Law School. He clerked for Justice David Souter and is now president of the American Constitution Society, a progressive legal organization.
Welcome to you both. Doug Kmiec, I'll begin with you. In the broadest terms, and you've looked at a lot of these writings and you just saw that -- or heard that tape, what can we discern or deduce about Judge Roberts' approach to the law, his basic judicial philosophy?
DOUGLAS KMIEC: Margaret, I think if one thing stands out about John Roberts is that he's a very careful, he's a very prepared, very measured judge.
You could hear in each of the explanations that he gave in the setup piece how well his mind works, how well it is aimed at fashioning a just result in particular cases, but also not a result that is political or ideological, but one that is aimed at resolving the case before him, as well as being faithful to the law as enacted by Congress and the Constitution as it's drafted. John Roberts has a very measured, very careful voice, one that will serve the court well.
MARGARET WARNER: And what picture do you get, Peter Rubin?
PETER RUBIN: Well, I agree with the beginning of what Doug said, that we see someone who is obviously very cautious and very careful. All we have is tea leaves, some in the form of his written decisions on the court of appeals, some in documents from his time in the office of the White House Counsel, and some in these television interviews.
I think that we're getting a sharper picture of him now, though, and it's a picture of someone who is -- or at least has been a quite dedicated proponent of conservative approaches to judicial, to legal interpretation and constitutional interpretation, starting in his earliest days after his clerkship when he worked in the White House.
MARGARET WARNER: All right. Define your term, if you would, for me when you say conservative, in this context.
PETER RUBIN: Well, in this context I mean that the approach that he takes to interpreting the Constitution is one that tends to lead to conservative results.
MARGARET WARNER: Are you saying you think he's driven to reach those results?
PETER RUBIN: Well, I think that -- I think that approach dictates result in many, many contexts. I don't think that he wouldn't consider the facts of the case. But I do think that when your philosophy or your approach, your understanding of the role of courts and of the meaning of the Constitution comes from a certain place and is sort of dyed in the wool if you will, that you're likely to come to a certain set of results.
And what we've seen here -- and there are just tea leaves now -- I think the hearings are going to be most important because I think they're going to hear from him directly about this, so these really are just tea leaves.
But from opinions he's issued in the court of appeals, for example, we see him relying on methods that result -- for example, there's a case now that's somewhat well-known about the arrest of a junior high school, an African-American junior high school girl here in Washington for eating a single French fry on her way home in the Metro station.
And he said that was a reasonable seizure of her, the arrest of her under a mandatory policy. And the method he used to reach that result, it's just a tea leaf, but it is a conservative method not unlike that used by, for example, Justice Antonin Scalia.
MARGARET WARNER: Yeah. I think his comment in that -- he wrote the opinion -- was that it's not up to us, it is not our place to second guess such legislative judgments. All right, Doug Kmiec, your turn -- do you see him having a conservative approach? If so, how would you design fine conservative?
DOUGLAS KMIEC: I don't think we should super size the McDonald's case, however interesting it may be.
The fact of the matter is, in that particular case the challenge was is that the Metro in Washington had drawn a distinction on the basis of treating adults different than children, and the simple legal issue was whether or not it was rational for the government to draw that distinction, and Judge Roberts, following precedent, following well-established constitutional doctrine, held that it was.
And Margaret, that really is the answer to the question. John Roberts is not a conservative in the sense of a movement conservative. He may well have served in that capacity when he was the staff lawyer for President Reagan. After all, the job of a staff lawyer in a political administration is to advance the policies of that administration.
But when John Roberts is writing for himself, when he's articulating his own perspective on the law, he's one that is very, very much attuned to the issue of whether someone is properly in court. Do they have a legitimate grievance? Have they met the case or controversy requirement?
And this is so refreshing because this is a judge who has a conception of the judicial power, which doesn't reach out to displace the legislature or the executive but allows democracy to work and at the same time checks democracy when it oversteps and invades individual right or disregards the design and the structure of the Constitution.
MARGARET WARNER: So in other words, you're saying that he doesn't see the law or the power of the court as a power to make policy?
DOUGLAS KMIEC: That's right. And one good way to discern who this person really is, is to look at him when he wasn't in the public limelight. He was asked in the early 1990s, after he left the solicitor general's office, to write an article on administrative law. And it was a very abstract, academic article about standing, which is the requirement to come into federal court.
And the insight that that gives you, Margaret, is that this is a person who is not seeking to advance liberal goals or conservative goals, but he's asking the question, what has Congress enacted, what does the Constitution provide? And he's going to follow the letter as written.
MARGARET WARNER: All right. Let's see if we have time to look at a couple of the issues that particularly came up in the tape and also in other writings.
Abortion -- Peter Rubin, first of all, what do you look at to discern where he might be on the right to an abortion, and secondly, what does it tell you?
PETER RUBIN: Well, we have very limited information about this, and I wish I could agree with Doug that we could tell that John Roberts was not a movement conservative.
But from the documents I think there has to be more inquiry into this. The documents we've seen include, for example, a reference in a document -- this is in his own words -- to a so-called "right to privacy."
MARGARET WARNER: It's a memo he wrote in '81.
PETER RUBIN: That's exactly right. Now, of course, he's much younger -- he's worked in the White House Counsel's Office and so on, but that's his view at the time of the so-called "right to privacy," and that's the right under which a woman's right to choose has been recognized by the Supreme Court.
In 1983, he wrote that the Constitution is only safe when the court is out of session for the summer between July and October. And this is after the court had become a quite conservative court. And, of course, in that interview you showed, he says it's not a very conservative Supreme Court we have -- the most conservative court in 70 years, seven Republican appointees --
MARGARET WARNER: But back to abortion --
PETER RUBIN: But the question is: Why does he -- why does he say this? And in the Roe context does he not believe that there are unenumerated rights -- I know Doug, for example, has spoken about the Ninth Amendment as a possible locus or a rule for courts finding rights like the right to abortion, which aren't listed in the Bill of Rights but which are long recognized in our law and important in our culture, and he has suggested in some of these early writings a real antipathy to that, and I think we're going to have to see exactly how that plays out.
I also have to agree with Doug; he seems to be judicious of temperament. He doesn't seem to be a bomb thrower, and I think that'll be an important thing to explore here even if his view were that Roe were wrongly decided, might he adhere to it for reasons of precedent and what's called stari decisis -- the rule that decided cases shouldn't be overturned.
MARGARET WARNER: All right. And Doug Kmiec, what would you see -- what do you discern about his view on abortion and that broader question about finding rights that aren't specifically enumerated in the Constitution?
DOUGLAS KMIEC: Well, I agree with Peter that John has been very careful about not prejudging cases, and it's important of course that he not do so because the Supreme Court has an abortion case, one dealing with a medical exception in the context of parental notice, that is a very prominent on its docket for the fall.
I think John is going to be someone who is going to be very observant of precedent, but also asking the questions that the court must ask: Is the precedent workable, is it stable, is it built on a foundation of law that is in fact defensible?
And one of the difficulties that both liberals and conservatives have always seen about the decision in Roe vs. Wade is that it is a creation of judicial behavior rather than an embrace of democratic outcome. It doesn't trust the states to make its own way.
My own supposition is that John Roberts will be deferential to the states and at the same time try and observe as much of precedent in abortion and in other contexts as keeps the law stable.
MARGARET WARNER: Just, could you comment in this answer on, he wrote in a couple of these memos about the so-called "right to privacy." Ho do you read that? How should we read that?
DOUGLAS KMIEC: Well, first of all, I think those comments were much closer to where the right was first being articulated. And we have to remember that the Supreme Court itself has recalibrated the right of privacy, or the liberty interests that includes abortion, and so it's commonplace when a right is in flux to use a descriptor such as "so-called," and I think it doesn't mean much more than that.
It means that in fact there is still room for the court to fill out this jurisprudence, but there's also room for the people in the states to regulate so long as they're observing both the liberty interest of the woman as well as the interest the state has in the protection of life.
MARGARET WARNER: And briefly, Mr. Rubin, because I want to get on to race and affirmative action, the case that was in the tape and there is now this ad about -- there are a couple of them -- having to do with Operation Rescue and abortion clinic protesters, do you think that's -- is that an abortion case or is that about something else really?
PETER RUBIN: I think it's both. I think that there are a bunch of tea leaves that should make people who care about choice concerned, which is he's never on the side of choice in any of these documents or cases.
So I think that it's important in that regard. What's interesting to me about that case is it was a case about whether an anti-discrimination law, the Ku Klux Act, prohibited discrimination against women seeking abortions by private people.
MARGARET WARNER: Whether that law applied.
PETER RUBIN: Whether it applied. But his position was that it was not discrimination against women to keep women from seeking abortions. He even said -- I thought interestingly in the clip -- that maybe the anti-discrimination law didn't even apply to discrimination against women --
MARGARET WARNER: The anti-KKK law.
PETER RUBIN: Well, it's the Civil Rights Act of 1871, and it's not written about race; it's written about discrimination. And he was saying it even might not apply to women at all.
Now, Justice O'Connor on the Supreme Court, she wrote that discrimination against people seeking abortions was sex discrimination, and his position was the opposite, and of course he'd be replacing her.
MARGARET WARNER: Unless you absolutely must answer that, Doug Kmiec, can I ask you about race and affirmative action?
DOUGLAS KMIEC: Sure.
MARGARET WARNER: We obviously saw the discussion about the contracting case. There are other things that he has written about, about racial preferences. What should we conclude from all that?
DOUGLAS KMIEC: Well, I think he believes, as the Supreme Court itself has articulated, that race ought not to be a factor in public decision-making; that when race is used, other qualities that relate to merit and competition and the ability to do the work are set aside, and we ought to be focusing on the quality of work and on fair government contracting and not on giving preference on the basis of something that should be both legally and morally irrelevant.
And at the same time, John Roberts has made it plain throughout his career that wherever there is evidence of discriminatory intent and behavior that is just simply inexcusable in terms of race or gender or other invidious categories that the civil rights laws ought to be used to remedy that type of prior discrimination.
But he's not the type of person who's going to encourage the use of race as a basis for allocating government benefits or other activity.
MARGARET WARNER: Let me get Mr. Rubin in on that point.
PETER RUBIN: If Doug is right, this is going to be an awfully controversial nomination, because what he said is that race can't be a factor in decision making. That's what Doug said.
I don't know what Judge Roberts' ultimate position will be. But affirmative action, higher education was upheld by the Supreme Court two years ago.
MARGARET WARNER: Justice O'Connor --
PETER RUBIN: Justice O'Connor wrote the opinion and was the fifth vote, and it's by that one vote that we have affirmative action in higher education, which I think is very important to many, many people who seek to have a diverse student body and a diverse workforce in a nation such as ours that's so pluralistic.
MARGARET WARNER: Well, we've just scratched the surface, but professors Peter Rubin and Doug Kmiec, thank you both.
PETER RUBIN: Thank you.
DOUGLAS KMIEC: Good to be with you.