As a talk-show guest in 2000, John G. Roberts Jr. repeatedly noted a tendency for Supreme Court judges to "go their own way," saying that even presidents could not predict how their appointees would vote.
Speaking on "Capital Conversation," a weekly public affairs program on the ABC Dallas affiliate WFAA, Roberts said many nominees had charted a different course from the one they were expected to take, adding, "It's an old story."
During the July 2 roundtable discussion, four months before the presidential election, he told co-host Carl Leubsdorf that it was "hard to tell" whether a George W. Bush presidency rather than an Al Gore presidency would change the Supreme Court because of the unpredictability of its judges.
Footage of the interview was aired yesterday on ABC's "This Week."
In the politically charged pre-election atmosphere, the discussion centered on three rulings: one to prohibit prayers at high school football games, another to permit the Boy Scouts to ban gay troop leaders and the third to prevent a state from banning late-term abortion.
"Taking this term as a whole, I think the most important thing it did was make a compelling case that we do not have a very conservative Supreme Court," Roberts responded at the time. The court had seven justices appointed by Republican presidents and two by a Democratic president.
But Roberts sought to play down the ideological underpinning of the Supreme Court, labeling it "first and foremost a pragmatic court." Although the program hosts addressed Roberts as a representative of the wider conservative movement, Roberts never used "we" or "us" to acknowledge he represented the right.
Liberal groups said the tape raised more worrying questions about Roberts, but White House spokesman David Almacy said the viewpoints expressed yesterday were similar to those Roberts aired in an exchange with Sen. Richard J. Durbin (D-Ill.) at Roberts's confirmation hearing in 2003 for a seat on the U.S. Court of Appeals for the District of Columbia Circuit.
The Supreme Court nominee is shown on the clips discussing many of the subjects expected to come up at his Senate confirmation hearing next month.
On late-term abortion, Roberts said he believed that a "new round" of the debate had just begun. He was then asked whether he thought the right to abortion was "hanging by a thread" after the court's 5 to 4 vote preventing states from banning late-term abortion.
"Oh, I don't think that's right. And you have to read, just read Justice [Anthony M.] Kennedy's opinion to understand that," Roberts said. "What he's saying is that this is different from the basic right to an abortion and therefore I'm on the dissent. That doesn't suggest that he's going to abandon his position, which has been supporting the basic right to an abortion, so I think that that right is protected now by more than just one vote."
Asked whether the school prayer issue had been settled for good, Roberts replied that government-sponsored, government-initiated prayer in school is unacceptable. But he added: "The test as I see it is if the prayer is genuinely student-initiated, student-led, and does not look like something the government, the school district, is sponsoring, then it's going to be all right."
He disputed the notion that the ruling was a significant setback for Republicans. "That was really based on the history of that particular practice, in that particular district. I don't think that that means there's no place for religious expression at a football game or any other type of activity. So the defeat for the conservatives this year, although real, is not as extreme as you might imagine."
Conservatives should welcome the outcome of the Boy Scout ruling, he said. "People have a right to form groups like the Boy Scouts to promote particular values, and they can exclude people who don't share those values."
Ralph G. Neas, president of the liberal People for the American Way, said: "With every day that passes, it becomes more clear that confirming John Roberts would mean replacing Sandra Day O'Connor with someone who viewed her as an obstacle to the ultra-conservative movement, which he had helped lead when he was with the Reagan and first Bush administration." Neas's organization has not declared outright opposition to Roberts, he said, but views the nomination with increased concern in light of recent revelations about his role.
Sean Rushton, executive director of the conservative Committee for Justice, said that the television clips "showed he is all the things that we've already assumed: highly intelligent, judicious. He certainly seemed to come from a conservative point of view, but he was analyzing the court's previous term, so he wasn't necessarily offering his own point of view."