Where John Roberts Really Stands

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By David Franklin
Sunday, August 7, 2005

With his Supreme Court confirmation hearings less than a month away, John G. Roberts Jr. has already amply established his credentials, competence and conservatism. The main question that remains for the Senate, and the country, is simple: How would a Justice Roberts change the landscape of constitutional law? To answer that question, politicians, columnists and bloggers on the right and the left have been struggling to discern where Roberts might stand on the great "social issues" of the day: abortion, affirmative action, church-state separation, capital punishment.

They're not going to get anywhere. Roberts won't share his personal views on contentious social issues with the Judiciary Committee, and his writings (at least those he has written on his own behalf) only hint at such matters. But there's an equally important, and likely more fruitful, line of inquiry for the Senate to pursue: the question of judicial deference to presidential power. What's more, it's a subject that Roberts has actually written about under his own name.

Take, for instance, his "Comment" in the April 1993 issue of the Duke Law Review. Perhaps the reason this article hasn't attracted broader attention in the popular press is its subject matter. The title alone, "Article III Limits on Statutory Standing," might leave even the most intrepid journalist struggling to stifle a yawn. Yet the topic of standing -- the inquiry that determines whether a plaintiff is entitled to federal court review of his case -- is a profoundly important one. Though standing and presidential power might seem worlds apart, Roberts's 1993 article suggests that he sees the two as linked -- and that a Justice Roberts might vote to restrict the former in order to expand the latter.

Rigorous insistence on standing can be seen as a form of judicial restraint -- an exercise of what legal scholar Alexander Bickel famously called the "passive virtues." When courts stand aside, the democratic process remains free to run its course. Yet things aren't that simple. Ever since the seminal 1803 case Marbury v. Madison , the court has recognized that it can nudge our system of governance in one direction or another by deciding that it lacks the power to resolve the merits of a case. Call it the "passive-aggressive virtues."

In recent decades the Supreme Court, often led by Justice Antonin Scalia, has tightened the requirements for standing, making it more difficult to bring lawsuits on issues ranging from civil rights claims to environmental enforcement actions to challenges to the constitutionality of the Pledge of Allegiance. Roberts's statement in his 1993 article that "[s]tanding is an apolitical limitation on judicial power" is true in the abstract, but the court's restrictive standing opinions have tended to harm (and its more lenient opinions have tended to help) liberal public-interest plaintiffs.

Most of Roberts's comment is a defense of the Supreme Court's 1992 decision in Lujan v. Defenders of Wildlife . In Lujan, the court (in a majority opinion by Scalia) held that the wildlife group lacked standing to claim that a rule issued by the Secretary of the Interior violated the Endangered Species Act (ESA). Defenders of Wildlife claimed standing based on affidavits of members who hoped to view endangered animals in the wild. The majority rejected the affidavits as speculative, and Roberts's article wholeheartedly defends this relatively uncontroversial holding.

But the Lujan plaintiffs had another, more plausible, basis for standing: Congress had authorized "any person" to bring suit alleging a violation of the ESA. The court also rejected this claim of "citizen-suit standing" -- but here's where things get interesting. Scalia's rejection was grounded in a sweeping theory of presidential control over the administrative state. If Congress could authorize mere citizens to sue to ensure that federal agencies followed the law, it would interfere, wrote Scalia, with the president's constitutional duty to "take Care that the Laws be faithfully executed." Justice Anthony Kennedy's concurrence, on the other hand, rested on much narrower grounds. While Congress has the power to define new forms of legal injury, wrote Kennedy, it had not done so in the ESA.

In his article, Roberts walks a fine line between the minimalist Kennedy approach and the maximalist Scalia approach. On the one hand, he judiciously notes that the citizen-suit ruling was "more problematic" than the rejection of the speculative affidavits. On the other hand, much of Roberts's article echoes Scalia's bolder approach both in tone and substance. "The one thing [Congress] may not do," he writes, "is ask the courts in effect to exercise [legislative] oversight responsibility at the behest of any John Q. Public who happens to be interested in the issue." By insisting upon standing, Roberts wrote, the court ensures that it "is carrying out its function of deciding a case or controversy, rather than fulfilling the executive's responsibility of taking care that the laws be faithfully executed." While the lyrics of Roberts's article follow Kennedy, the music is pure Scalia.

Of course, that was 12 years ago; Roberts had spent most of the preceding decade working as a lawyer for the executive branch. His views as a justice, with lifetime tenure and salary protection, might well be different. The model here is Robert H. Jackson: As Franklin D. Roosevelt's attorney general, Jackson wrote a memorandum supporting the president's power to seize an aircraft plant in wartime to settle a labor dispute; later, as a Supreme Court justice, he voted to deny President Harry Truman much the same power. "[A] judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question," Jackson wrote in his celebrated opinion in Youngstown Sheet & Tube v. Sawyer , "even if the advocate was himself."

It is particularly important for the Senate to try to elicit Roberts's views on the president's power to conduct war and foreign affairs -- and here again, his own writings provide some clues. According to a recent report, Roberts was heavily involved as a law clerk in drafting then-Associate Justice William H. Rehnquist's opinion in the 1981 case of Dames & Moore v. Regan , in which the court cobbled together bits of various statutes to find authorization for the president to cancel private claims against Iran that were pending in American courts. The outcome of Dames & Moore was inevitable: After all, the suspension of claims was an integral part of the agreement that led to the release of U.S. hostages from Iran. But the court's reasoning, which stretched the limits of Youngstown Sheet & Tube by interpreting something close to congressional inaction as approval of presidential action, has been widely questioned.

We shouldn't read a whole lot into Roberts's role in the Dames & Moore case; as a former clerk at the court, I can say from experience that the justices' opinions are very much their own, regardless of any input from their employees. But last year, in a lawsuit that Roberts heard as a judge on the U.S. Circuit Court of Appeals for the District of Columbia, he showed an inclination to apply the Dames & Moore principle rather broadly. The plaintiffs in Acree v. Republic of Iraq were American servicemen who had been held as POWs in Iraq during the 1991 Gulf War. They sued the government of Iraq under a statute authorizing lawsuits against state sponsors of terrorism -- and won. Two weeks later, however, the Justice Department entered the case to argue that the statute on which the plaintiffs relied had been nullified by the president pursuant to broad language in a 2003 appropriations act.

Calling the question "exceedingly close," the majority on the Court of Appeals rejected this argument (although the court ultimately ruled against the plaintiffs on other grounds). Roberts sided with President Bush, concluding that the 2003 act's broad language deserved a broad interpretation. In a footnote, he suggested that courts should accord the president the same wide latitude in interpreting ambiguous statutes that they accord to administrative agencies.

Roberts's opinion in Acree is carefully written and reasonable; indeed, it is in the spirit not only of Dames & Moore but also of the Supreme Court's closely divided decision in Hamdi v. Rumsfeld (handed down a few weeks after Acree ), which held that Congress's post-Sept. 11, 2001, Authorization of the Use of Military Force entitled the president to detain enemy combatants under certain conditions. But it raises questions: How does Roberts believe courts ought to interpret broad statutes when the president relies on them to support his conduct? Would his views on standing and deference combine to leave executive action virtually unreviewable? Does Roberts share the extreme view, expressed by Justice Clarence Thomas in a lonely dissent in Hamdi, that the president enjoys inherent authority to prosecute the war on terrorism as he sees fit, statute or no statute?

Roberts should feel relatively unconstrained in answering questions about Acree -- and about the D.C. Circuit's recent decision upholding the use of military commissions to try "enemy combatants" -- because, as he told the Judiciary Committee last week in a written statement, if confirmed he would recuse himself from cases that came before him at the Court of Appeals.

The proper scope of executive power is the most uncertain -- and arguably the most significant -- issue in constitutional law today. The president has asserted the authority to detain United States citizens indefinitely, to try "enemy combatants" before military tribunals and to sidestep the Geneva Conventions in the treatment of detainees. Meanwhile, Congress has remained virtually inert. Consequently, the role of the Supreme Court in reviewing executive actions has never been more crucial. John Roberts's past words on these topics raise as many questions as answers -- but they are questions that should be asked.

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David Franklin teaches constitutional and administrative law at the DePaul University College of Law in Chicago. He served as a law clerk to Justice Ruth Bader Ginsburg during the 1999-2000 Supreme Court term.

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