Senate To Start Roberts Hearings

In two memos, Roberts suggested that gender discrimination did not have to meet a heightened level of court scrutiny, a view at odds with the Supreme Court. Defenders note that Roberts did, in the first instance, point out that the position was the policy of then-Attorney General William French Smith.

In a 1981 memo, Roberts argued that while a school board "with a blanket policy of rejecting all blacks" may be discriminating, rejected applicants were not entitled to job offers and back pay unless they could prove that they "were more qualified than white applicants who were hired."

The law, then and now, requires only that applicants prove they were as qualified, said Chuck Cooper, the official to whom Roberts addressed his memo.

Privacy and Abortion

Senators will press Roberts on abortion and the right to privacy, which the Supreme Court has cited as the legal underpinning for legalized abortion. In his Reagan-era writings, Roberts referred to the "so-called right to privacy," expressing the view that such an "amorphous right" does not exist in the Constitution. He called abortion a "tragedy."

Twenty-four years ago, when Roberts was preparing O'Connor for her Senate hearing, he advised her not to state her position on the landmark 1973 Roe v. Wade case. "The proposition that the only way senators can ascertain a nominee's views is through questions about specific cases should be rejected," he wrote.

During Roberts's 2003 confirmation hearing for his current post as an appellate judge, he said only that he considered Roe a matter of settled law. Now that he is nominated to head a court that eventually could vote to overturn the case, senators will ask him how much weight a justice should give to court precedent and whether he thinks Roe was rightly decided.

Interstate Commerce

Democrats will seek Roberts's views on Congress's authority to pass a wide range of laws in the name of regulating interstate commerce. The "commerce clause" is especially important to liberal groups because it has enabled the federal government to override state resistance in areas such as voting rights.

Roberts's best-known comment on the topic came in his dissenting opinion as an appellate judge in a 2003 case known as Rancho Viejo . A California developer challenged a federal environmental law that impeded his planned project in a bid to protect a rare species of toad that lives only in California. Roberts said the commerce clause should not apply because the toads did not cross state lines. The liberal group Alliance for Justice called his opinion a "crabbed view of congressional power" that threatened "to undermine a wide swath of federal protections, including many environmental, civil rights, workplace and criminal laws."

Courts' Powers

In the 1980s, Roberts repeatedly argued that Congress had the power to strip the Supreme Court of the authority to hear cases on abortion, school prayer and other issues. Although Roberts would later write that such a move would be "bad policy," his supporters say he can expect tough questions this week.

Theodore B. Olson, a colleague who differed with Roberts at the time, later became solicitor general and this summer helped Roberts prepare for the hearing. In an interview, Olson said Roberts needs to explain the context of his arguments as a young Reagan administration lawyer. Part of Roberts's role at the time, he said, was to challenge the status quo and provoke debate. "That probably means that there are a disproportionate number of his memos where he was out there on the conservative side," Olson said. Roberts also has argued that the federal government -- and federal courts -- should be selective and cautious in challenging state laws. In a 1982 memo he lamented that the Justice Department did not help Texas defend a law -- eventually struck down -- that allowed public schools to turn away children of illegal immigrants.

Research editor Lucy Shackelford contributed to this report.