Sifting Old, New Writings For Roberts's Philosophy

Criminal Law

Criminal cases fill the Supreme Court docket. Virtually every death sentence in the nation comes before the court on appeals and habeas corpus challenges claiming constitutional violations. This fall, the court will hear several death penalty cases, including one that asks the court to relax the high bar that defendants must now meet to present claims of innocence during appeals.

As a Justice Department lawyer in the Reagan administration, Roberts in 1981 advocated strictly limiting the ability of convicted inmates to make such claims. Criminals were clogging the court with frivolous petitions and it is rare "that the meritorious claim has anything to do with the petitioner's innocence," he wrote.

It was easier for criminals to make such petitions then than it is today. But at that time Roberts suggested that the problem was so out of control that "the question would seem to be not what tinkering is necessary in the system, but rather why have federal habeas corpus at all?"

Later, as an associate White House counsel, Roberts wrote that the Supreme Court should abdicate the "role of fourth or fifth guesser in death penalty cases" by hearing fewer appeals. He also wrote approvingly of the administration's efforts to undo Supreme Court rulings that exclude from trial improperly seized evidence, attempts that eventually failed.

Now a federal appeals court judge himself, Roberts has heard several criminal cases and has showed deference to prosecutors. In one case, for instance, he dissented from an opinion that threw out evidence from the warrantless search of a bank robber's car, writing that the car's stolen license plates and the defendant's failure to have the registration were adequate reasons for the police to open the car trunk.

Abortion

A common theme throughout Roberts's writings is his view that the courts were improperly creating rights that were not explicitly stated in the Constitution. For many conservatives, the high-water mark of such "judicial activism" was Roe v. Wade , the landmark 1973 decision that legalized abortion throughout the country.

During his 2003 confirmation hearings for the appellate court, Roberts said he considered the case a matter of "settled law." But unlike in his current role as an appeals court judge, bound to follow Supreme Court precedents, Roberts would be free to overturn them if confirmed to the high court.

In his writings as a lawyer in the Reagan administration, he expressed deep skepticism about the legal underpinnings of abortion.

In 1981, Roberts referred to the "so-called right to privacy," first found by the Supreme Court in a 1965 case involving a law that prohibited contraception. Though the Constitution does not explicitly say so, the court ruled that citizens had a right to be protected from government interference in intimate decisions. That right was later used to justify Roe v. Wade , striking down blanket abortion prohibitions. It is also cited in right-to-die cases involving patients' rights to refuse medical intervention.

In 1985, he called a proposed memorial service for aborted fetuses organized by antiabortion doctors in California "an entirely appropriate means of calling attention to the abortion tragedy." And as principal deputy solicitor general from 1989 to 1993, Roberts co-authored a brief that said Roe v. Wade should be overturned.

Religion in Public Life

Like many officials in the Reagan administration, Roberts was openly antagonistic to court rulings striking down officially sanctioned references to religion or prayer in public schools. In a memo to Fielding on Aug. 6, 1985, for example, Roberts noted that he was a clerk for Justice William H. Rehnquist when Rehnquist filed a lone dissent to a Supreme Court decision barring the posting of the Ten Commandments in public schools.

Regarding a draft speech by then-Education Secretary William J. Bennett that criticized courts for betraying "a hostility to religion not demanded by the constitution," Roberts said, "I have no quarrel with Bennett on the merits. . . . Nor am I bothered by the criticism of the Supreme Court decisions."

While working as principal deputy solicitor general, Roberts co-signed a court brief arguing that a Rhode Island middle school should be permitted to organize a brief prayer at a public school graduation ceremony.

Staff writers Amy Argetsinger and Sonya Geis in Simi Valley, Calif., and researchers Meg Smith and Karl Evanzz contributed to this article.