Roberts Was Influenced by Critics of the Warren Court

Like Rehnquist, the Nominee Is a Skeptic on Judicial Intervention

From his youthful days as a Reagan administration aide to his current job as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, John G. Roberts Jr. has consistently espoused a clear view of federal judicial intervention: Less is more.

This same principle was held dear by the man Roberts served as a Supreme Court clerk, the late William H. Rehnquist -- whose former position as chief justice of the United States is now suddenly within Roberts's grasp.

In the quarter-century since he served as Rehnquist's aide, Roberts has made an instinctual and deeply held conservatism plain at nearly every turn. As a young Reagan administration aide, he registered his skepticism toward court-recognized "fundamental rights," such as the right to privacy. Earlier this year, Judge Roberts voted to permit President Bush to subject terrorism suspects to military trials at Guantanamo Bay.

The question -- more urgent now since Bush nominated him yesterday morning to lead the high court -- is where Roberts's vision of judicial restraint would lead him on the most volatile issues. The woman Roberts was originally tapped to replace, Justice Sandra Day O'Connor, sometimes displayed her conservatism by bowing to precedents on social issues -- notably Roe v. Wade , which established a right to abortion rooted in a right to privacy. Rehnquist labored mightily to reverse some rulings on abortion and the rights of criminal defendants that he thought were wrongly decided in the first place.

To Roberts's supporters, his history suggests he will be a careful and principled leader of the federal judiciary, one who would restore the true constitutional balance of power between the courts and the people's elected representatives in Congress, the White House and the states.

To his opponents, it suggests a willingness to leave the constitutional rights of women and minorities unprotected against violations by the more political branches of government.

What is unmistakable from Roberts's record, however, is that his essential philosophy about the role of courts in American life is strongly held. There is little prospect that the 50-year-old judge will be any less likely to press his beliefs in conference with colleagues on the court than he was to promote them in memos to his elders in the Reagan administration.

Sounding very much like the 26-year-old aide who ghostwrote articles and speeches on judicial restraint for President Ronald Reagan's Justice Department, Roberts told the Senate firmly in a written submission last month that federal judges "do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law."

The Primacy of Process

Roberts has said that defining the proper boundaries of judicial review is a "central problem" of American government. Few legal analysts of any ideological stripe would dispute that.

Throughout history, the Supreme Court has provoked controversy by using its power to declare laws unconstitutional in ways that critics saw as overstepping its authority.

President Thomas Jefferson condemned the 1803 Marbury v. Madison decision that established the doctrine of judicial review.

The Dred Scott case of 1857 -- which declared that black people were "beings of an inferior order" and that congressional efforts to restrict slavery in northern territories were a violation of property rights -- discredited the institution for a generation. A series of rulings striking down state and federal economic regulations provoked President Franklin D. Roosevelt's "court-packing" plan, until the justices backed down and began upholding New Deal legislation.