Roberts Was Influenced by Critics of the Warren Court

A Closet Activist?

That, in essence, is the critique liberals are raising about Roberts's jurisprudence today: that his insistence on a limited role for the federal courts is a cover for conservative policy preferences.

Announcing its opposition to Roberts, the Alliance for Justice said that Roberts supports "weakening women's rights and civil rights laws, cutting back the vital role of our courts in enforcing legal protections and restricting the ability of the people's democratically elected representatives to enact crucial, nationwide worker, anti-discrimination and environmental safeguards."

Court conservatives such as Rehnquist and Justices Antonin Scalia and Clarence Thomas have also espoused judicial restraint. Yet that has not prevented them from striking down many federal and state statutes, often on the basis of a states'-rights doctrine that dissenting justices on the court have criticized as too loosely based in constitutional text.

The accusation that Roberts is capable of his own brand of activism has not come exclusively from liberal advocacy groups.

On the D.C. Circuit, he wrote an opinion for a 2 to 1 majority in which he interpreted a law to deny a former Amtrak employee the right to sue the government-subsidized railroad in federal court for allegedly spending taxpayer money on defective railroad cars.

Judge Merrick Garland wrote in dissent that Roberts's opinion "falls back on policy considerations" but "the policy on which the court relies are not those of the Congress of the United States."

But to many, Roberts's intellectual pedigree marks him as a careful "lawyer's lawyer," with a healthy recognition of the courts' -- and his own -- fallibility.

"Of all the people Bush could have nominated, this is a guy who is actually telling the truth when he says he can't decide a case until he's seen the facts and the briefs," says Jonathan Macey, a professor of law at Yale University.

St. John's University law professor John Barrett, noting that Roberts has named legal craftsmen such as Justices Felix Frankfurter and Robert Jackson as the Supreme Court members he most admires, suggests that he "may end up disappointing President Bush."

If he remains true to the legal view embodied by the Legal Process School, Barrett said, "he'll shy from agenda-driven decision making" and respect long-established precedents, even those, such as Roe v. Wade , of which he may disapprove.

"A kind of continuity of judicial decision-making is a value in the process world," Barrett said. "Moderation, deference, continuity, caution, candor -- it's not swing for the fences judging."

Another crucial influence on Roberts's judicial philosophy was Henry J. Friendly, a judge on the U.S. Court of Appeals for the 2nd Circuit in New York, for whom Roberts worked as a law clerk in 1979-1980, just after graduating from Harvard.