John Roberts

Hedgepeth v. Washington Metropolitan Area Transit Authority, 386 F.3d 1148,[34] involved a 12-year-old girl who was arrested, searched, handcuffed, driven to police headquarters, booked, and fingerprinted after she violated a publicly advertised zero tolerance "no eating" policy in a Washington Metro station by eating a single french fry. She was released to her mother three hours later. She sued, alleging that an adult would have only received a citation for the same offense, while children must be detained until parents are notified. The D.C. Circuit unanimously affirmed the district court's dismissal of the girl's lawsuit, which was predicated on alleged violations of the Fourth Amendment (unreasonable search and seizure) and Fifth Amendment (equal protection).

"No one is very happy about the events that led to this litigation," Roberts wrote, and noted that the policies under which the girl was apprehended had since been changed. Because age discrimination is evaluated using a rational basis test, however, only weak state interests were required to justify the policy, and the panel concluded they were present. "Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen—detention until the parent is notified and retrieves the child—certainly does that, in a way issuing a citation might not." The court concluded that the policy and detention were constitutional, noting that "the question before us ... is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth amendments to the Constitution," language reminiscent of Justice Potter Stewart's dissent in Griswold v. Connecticut. "We are not asked in this case to say whether we think this law is unwise, or even asinine," Stewart had written; "[w]e are asked to hold that it violates the United States Constitution. And that, I cannot do."

In Hamdan v. Rumsfeld, Roberts was part of a unanimous circuit panel overturning the district court ruling and upholding military tribunals set up by the Bush administration for trying terrorism suspects known as enemy combatants. Circuit judge A. Raymond Randolph, writing for the court, ruled that Salim Ahmed Hamdan, a driver for al-Qaeda leader Osama bin Laden,[35] could be tried by a military court because:

1. the military commission had the approval of the United States Congress;
2. the Third Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies enforceable in U.S. courts;
3. even if the Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because, for a conflict such as the war against Al-Qaeda (considered by the court as a separate war from that against Afghanistan itself) that is not between two countries, it guarantees only a certain standard of judicial procedure without speaking to the jurisdiction in which the prisoner must be tried.

The court held open the possibility of judicial review of the results of the military commission after the current proceedings ended.[36] This decision was overturned on June 29, 2006, by the Supreme Court in a 5–3 decision, with Roberts not participating due to his prior participation in the case as a circuit judge.[37]

Roberts wrote a dissent in Rancho Viejo, LLC v. Norton, 323 F.3d 1062, a case involving the protection of a rare California toad under the Endangered Species Act. When the court denied a rehearing en banc, 334 F.3d 1158 (D.C. Cir. 2003), Roberts dissented, arguing that the panel opinion was inconsistent with United States v. Lopez and United States v. Morrison in that it incorrectly focused on whether the regulation substantially affects interstate commerce rather than on whether the regulated activity does. In Roberts's view, the Commerce Clause of the Constitution did not permit the government to regulate activity affecting what he called "a hapless toad" that "for reasons of its own, lives its entire life in California." He said that reviewing the panel decision would allow the court "alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent."[38]

During his confirmation hearings, Roberts said that he did not have a comprehensive jurisprudential philosophy, and he did "not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document."[40][41] Roberts analogized judges to baseball umpires: "[I]t's my job to call balls and strikes, and not to pitch or bat."[42] Roberts demonstrated an encyclopedic knowledge of Supreme Court precedent, which he discussed without notes. Among the issues he discussed were:

In Senate hearings, Roberts has stated:

Starting with McCulloch v. Maryland, Chief Justice John Marshall gave a very broad and expansive reading to the powers of the Federal Government and explained generally that if the ends be legitimate, then any means chosen to achieve them are within the power of the Federal Government, and cases interpreting that, throughout the years, have come down. Certainly, by the time Lopez was decided, many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren't going to be thrown out that way. Lopez certainly breathed new life into the Commerce Clause. I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It's not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That's a very important factor. It wasn't present in Lopez at all. I think the members of Congress had heard the same thing I had heard in law school, that this is unimportant—and they hadn't gone through the process of establishing a record in that case.[41]

Roberts stated the following about federalism in a 1999 radio interview:

We have gotten to the point these days where we think the only way we can show we're serious about a problem is if we pass a federal law, whether it is the Violence Against Women Act or anything else. The fact of the matter is conditions are different in different states, and state laws can be more relevant is I think exactly the right term, more attuned to the different situations in New York, as opposed to Minnesota, and that is what the Federal system is based on.[43]

At a Senate hearing, Roberts stated:

The Supreme Court has, throughout its history, on many occasions described the deference that is due to legislative judgments. Justice Holmes described assessing the constitutionality of an act of Congress as the gravest duty that the Supreme Court is called upon to perform. ... It's a principle that is easily stated and needs to be observed in practice, as well as in theory. Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic.[41]

On the subject of stare decisis, referring to Brown v. Board, the decision overturning school segregation, Roberts said that "the Court in that case, of course, overruled a prior decision. I don't think that constitutes judicial activism because obviously if the decision is wrong, it should be overruled. That's not activism. That's applying the law correctly."[44]

While working as a lawyer for the Reagan administration, Roberts wrote legal memos defending administration policies on abortion.[45] At his nomination hearing Roberts testified that the legal memos represented the views of the administration he was representing at the time and not necessarily his own.[46] "Senator, I was a staff lawyer; I didn't have a position," Roberts said.[46] As a lawyer in the George H. W. Bush administration, Roberts signed a legal brief urging the court to overturn Roe v. Wade.[47]

In private meetings with senators before his confirmation, Roberts testified that Roe was settled law, but added that it was subject to the legal principle of stare decisis,[48] meaning that while the Court must give some weight to the precedent, it was not legally bound to uphold it.

In his Senate testimony, Roberts said that, while sitting on the Appellate Court, he had an obligation to respect precedents established by the Supreme Court, including the right to an abortion. He stated: "Roe v. Wade is the settled law of the land. ... There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey." Following the traditional reluctance of nominees to indicate which way they might vote on an issue likely to come before the Supreme Court, he did not explicitly say whether he would vote to overturn either,[40] however Jeffrey Rosen adds "I wouldn’t bet on Chief Justice Roberts’s siding unequivocally with the anti-Roe forces."[49]

On September 22, the Senate Judiciary Committee approved Roberts's nomination by a vote of 13–5, with Senators Ted Kennedy, Richard Durbin, Charles Schumer, Joe Biden and Dianne Feinstein casting the dissenting votes. Roberts was confirmed by the full Senate on September 29 by a margin of 78–22.[50] All Republicans and the one Independent voted for Roberts; the Democrats split evenly, 22–22. Roberts was confirmed by what was, historically, a narrow margin for a Supreme Court justice. However, all subsequent confirmation votes have been even narrower.[51][52][53][54]

Roberts is assigned to the following circuits of the US federal courts system: the United States Court of Appeals for the District of Columbia Circuit, the Fourth Circuit (including Maryland, North Carolina, South Carolina, West Virginia, and Virginia, and the United States Court of Appeals for the Federal Circuit.[63] Circuit justices are principally responsible for responding to emergency requests (for example, applications for emergency stays of executions). Prior to confirmation of Brett Kavanaugh, Roberts was assigned to cover the Ninth Circuit, but he relinquished these responsibilities during the October 2018 term[64]

On January 17, 2006, Roberts dissented along with Antonin Scalia and Clarence Thomas in Gonzales v. Oregon, which held that the Controlled Substances Act does not allow the United States attorney general to prohibit physicians from prescribing drugs for the assisted suicide of the terminally ill as permitted by an Oregon law. The point of contention in the case was largely one of statutory interpretation, not federalism.

On March 6, 2006, Roberts wrote the unanimous decision in Rumsfeld v. Forum for Academic and Institutional Rights that colleges accepting federal money must allow military recruiters on campus, despite university objections to the Clinton administration-initiated "don't ask, don't tell" policy.

Following his concurrence in Citizens United v. FEC (2010), Roberts wrote the majority decision for another landmark campaign finance case called McCutcheon v. FEC (2014). In McCutcheon the court ruled that "aggregate limits" on the combined amount a donor could give to various federal candidates or party committees violated the First Amendment.[57][65]

Roberts wrote his first dissent in Georgia v. Randolph (2006). The majority's decision prohibited police from searching a home if both occupants are present but one objected and the other consented. Roberts criticized the majority opinion as inconsistent with prior case law and for partly basing its reasoning on its perception of social custom. He said the social expectation test was flawed because the Fourth Amendment protects a legitimate expectation of privacy, not social expectations.[66]

In Utah v. Strieff (2016), Roberts joined the majority in ruling (5–3) that a person with an outstanding warrant may be arrested and searched, and that any evidence discovered based on that search is admissible in court; the majority opinion held that this remains true even when police act unlawfully by stopping a person without reasonable suspicion, before learning of the existence of the outstanding warrant.[67]

In Carpenter v. United States, a landmark decision involving privacy of cellular phone data, Roberts wrote the majority opinion in a 5–4 ruling that searches of cellular phone data generally require a warrant.[68]

Although Roberts has often sided with Scalia and Thomas, he also provided a crucial vote against their mutual position in Jones v. Flowers, siding with liberal justices of the court in ruling that, before a home is seized and sold in a tax-forfeiture sale, due diligence must be demonstrated and proper notification needs to be sent to the owners. Dissenting justices were Anthony Kennedy, Antonin Scalia and Clarence Thomas, while Roberts's opinion was joined by David Souter, Stephen Breyer, John Paul Stevens and Ruth Bader Ginsburg. Samuel Alito did not participate.

On the Supreme Court, Roberts has indicated he supports some abortion restrictions. In Gonzales v. Carhart (2007), he voted with the majority to uphold the constitutionality of the Partial-Birth Abortion Ban Act. Justice Anthony Kennedy, writing for a five-justice majority, distinguished Stenberg v. Carhart, and concluded that the court's previous decision in Planned Parenthood v. Casey did not prevent Congress from banning the procedure. The decision left the door open for future as-applied challenges, and did not address the broader question of whether Congress had the authority to pass the law.[69] Justice Clarence Thomas filed a concurring opinion, contending that the Court's prior decisions in Roe v. Wade and Casey should be reversed; Roberts declined to join that opinion.

In December 2018, justices Roberts and Brett Kavanaugh joined the court's four liberal justices in a denial for writ of certiorari, declining to hear a case brought by the states of Louisiana and Kansas to deny Medicaid funding to Planned Parenthood.[70] Because the Supreme Court declined to hear the case, the lower court rulings in favor of Planned Parenthood still stand.[71] In February 2019, Roberts sided with the court's liberal wing, in a 5–4 decision, granting a stay to temporarily block a Louisiana abortion restriction.[72] The Louisiana law required that doctors performing abortions possess admitting privileges at a hospital near the facility providing the abortion, and the stay blocks that law pending review in the legal process.[73][74]

On November 4, 2016, Roberts was the deciding vote in a 5–3 decision to stay an execution.[75] On February 7, 2019, Roberts was part of the majority in a 5–4 decision rejecting a Muslim inmate's request to delay execution in order to have an imam present with him during the execution.[76] Also in February, 2019, Roberts sided with Justice Kavanaugh and the court's four liberal justices in a 6–3 decision to block the execution of a man with an "intellectual disability" in Texas.[77][78]

Roberts opposes the use of race in assigning students to particular schools, including for purposes such as maintaining integrated schools.[79] He sees such plans as discrimination in violation of the constitution's Equal Protection Clause and Brown v. Board of Education.[79][80] In Parents Involved in Community Schools v. Seattle School District No. 1, the court considered two voluntarily adopted school district plans that relied on race to determine which schools certain children may attend. The court had held in Brown that "racial discrimination in public education is unconstitutional,"[81] and later, that "racial classifications, imposed by whatever federal, state, or local governmental actor, ... are constitutional only if they are narrowly tailored measures that further compelling governmental interests,"[82] and that this "[n]arrow tailoring ... require[s] serious, good faith consideration of workable race-neutral alternatives."[83] Roberts cited these cases in writing for the Parents Involved majority, concluding that the school districts had "failed to show that they considered methods other than explicit racial classifications to achieve their stated goals."[84] In a section of the opinion joined by four other Justices, Roberts added that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Roberts authored the 2007 student free speech case Morse v. Frederick, ruling that a student in a public school-sponsored activity does not have the right to advocate drug use on the basis that the right to free speech does not invariably prevent the exercise of school discipline.[85]

On April 20, 2010, in United States v. Stevens, the Supreme Court struck down an animal cruelty law. Roberts, writing for an 8–1 majority, found that a federal statute criminalizing the commercial production, sale, or possession of depictions of cruelty to animals, was an unconstitutional abridgment of the First Amendment right to freedom of speech. The Court held that the statute was substantially overbroad; for example, it could allow prosecutions for selling photos of out-of-season hunting.[86]

On June 28, 2012, Roberts delivered the majority opinion in National Federation of Independent Business v. Sebelius, which upheld the Patient Protection and Affordable Care Act by a 5–4 vote. The Court indicated that although the "individual mandate" component of the Act could not be upheld under the Commerce Clause, the mandate could be construed as a tax and was therefore ruled to be valid under Congress's authority to "lay and collect taxes."[87][88] The Court overturned a portion of the law related to the withholding of funds from states that did not comply with the expansion of Medicaid; Roberts wrote that "Congress is not free ... to penalize states that choose not to participate in that new program by taking away their existing Medicaid funding."[88] Sources within the Supreme Court state that Roberts switched his vote regarding the individual mandate sometime after an initial vote[89][90] and that Roberts largely wrote both the majority and minority opinions.[91] This extremely unusual circumstance has also been used to explain why the minority opinion was also unsigned, itself a rare phenomenon from the Supreme Court.[91]

Roberts has been compared and contrasted to other court members by commentators.[92][49][93] Although Roberts is identified as having a conservative judicial philosophy, his vote in National Federation of Independent Business v. Sebelius to uphold the Patient Protection and Affordable Care Act (ACA) caused the press to contrast him with the Rehnquist court. Roberts is seen as having a more moderate conservative orientation, particularly when Bush v. Gore is compared to Roberts's vote for the ACA.[94] Roberts's judicial philosophy is seen as more moderate and conciliatory than Antonin Scalia's and Clarence Thomas'.[92][93][94] He wishes more consensus from the Court.[92] Roberts's voting pattern is most closely aligned to Samuel Alito's.[95]

In 2013, Roberts wrote the 5-4 majority opinion that the appellants seeking to uphold Proposition 8 in California, which was ruled unconstitutional by lower courts, did not have standing and the lower courts' rulings were allowed to stand and same-sex marriages resumed in California.[96] Roberts dissented in United States v. Windsor in which the 5-4 majority ruled that key parts of the Defense of Marriage Act were unconstitutional.[97] The case allowed the federal government to recognize same-sex marriages performed in jurisdictions where legal. He dissented in the Obergefell v. Hodges case in which Kennedy wrote for the majority, again 5-4, that same-sex couples had a right to marry.[98] In Pavan v. Smith, the Supreme Court "summarily overruled" the Arkansas Supreme Court's decision that the state did not have to list same-sex spouses on birth certificates thus siding with same-sex couples who filed the lawsuit; Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented but Roberts did not join their dissent leaving open speculation that he might have ruled with the majority.[99]

Roberts administers the presidential oath of office to Barack Obama a second time, January 21, 2009.

As the chief justice, Roberts also serves in a variety of non-judicial roles, including chancellor of the Smithsonian Institution and leading the Judicial Conference of the United States. Perhaps the best known of these is the custom of the chief justice administering the oath of office at presidential inaugurations. Roberts debuted in this capacity at the inauguration of Barack Obama on January 20, 2009. (As a senator, Obama had voted against Roberts's confirmation to the Supreme Court, making the event doubly a first: the first time a president was sworn in by someone whose confirmation he opposed.[100]) Things did not go smoothly. According to columnist Jeffrey Toobin:

Through intermediaries, Roberts and Obama had agreed how to divide the thirty-five-word oath for the swearing in. Obama was first supposed to repeat the clause "I, Barack Hussein Obama, do solemnly swear." But, when Obama heard Roberts begin to speak, he interrupted Roberts before he said "do solemnly swear." This apparently flustered the Chief Justice, who then made a mistake in the next line, inserting the word "faithfully" out of order. Obama smiled, apparently recognizing the error, then tried to follow along. Roberts then garbled another word in the next passage, before correctly reciting, "preserve, protect, and defend the Constitution of the United States."[101]

Part of the difficulty was that Roberts did not have the text of the oath with him but relied on his memory. On later occasions when Roberts has administered an oath, he has taken the text with him.

The Associated Press reported that "[l]ater, as the two men shook hands in the Capitol, Roberts appeared to say the mistake was his fault."[102] The following evening in the White House Map Room with reporters present, Roberts and Obama repeated the oath correctly. This was, according to the White House, done out of "an abundance of caution" to ensure that the constitutional requirement had been met.

In November 2018, the Associated Press approached Roberts for comment after President Donald Trump described a jurist who ruled against his asylum policy as an "Obama judge". In response, Roberts asserted that "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them." Robert's remarks were widely interpreted as a rebuke of President Trump's comments.[103][104][105]

Chief Justice Roberts presided over the impeachment trial of Donald Trump, which began on January 16 and ended on February 5, 2020.

In the summer of 2007, Roberts suffered a seizure while he was at his vacation home on Hupper Island off the village of Port Clyde in St. George, Maine.[108][109] As a result of the seizure he fell 5 to 10 feet (1.5 to 3.0 m) on a dock near his house but suffered only minor scrapes.[108] He was taken by private boat to the mainland[109] (which is several hundred yards from the island) and then by ambulance to Penobscot Bay Medical Center in Rockport, where he stayed overnight, according to Supreme Court spokesperson Kathy Arberg.[110] Doctors called the incident a benign idiopathic seizure, which means there was no identifiable physiological cause.[108][109][111][112]

Roberts had suffered a similar seizure in 1993.[108][109][111] After this first seizure, Roberts temporarily limited some of his activities, such as driving. According to Senator Arlen Specter, who chaired the Senate Judiciary Committee during Roberts's nomination to be Chief Justice in 2005, senators were aware of this seizure when they were considering his nomination, but the committee did not think it was significant enough to bring up during his confirmation hearings. Federal judges are not required by law to release information about their health.[108]

According to neurologist Marc Schlosberg of Washington Hospital Center, who has no direct connection to the Roberts case, someone who has had more than one seizure without any other cause is by definition determined to have epilepsy. After two seizures, the likelihood of another at some point is greater than 60 percent.[109] Steven Garner of New York Methodist Hospital, who is also uninvolved with the case, said that Roberts's previous history of seizures means that the second incident may be less serious than if this were a newly emerging problem.[111] The Supreme Court said in a statement that Roberts has "fully recovered from the incident" and that a neurological evaluation "revealed no cause for concern."

According to a 16-page financial disclosure form Roberts submitted to the Senate Judiciary Committee prior to his Supreme Court confirmation hearings, his net worth was more than $6 million, including $1.6 million in stock holdings. At the time Roberts left private practice to join the D.C. Circuit Court of Appeals in 2003, he took a pay cut from $1 million a year to $171,800; as Chief Justice, his salary is $255,500 as of 2014. Roberts also holds a one-eighth interest in a cottage in Knocklong, an Irish village in County Limerick.[113]

In August 2010, Roberts sold his stock in Pfizer, which allowed him to participate in two pending cases involving the pharmaceutical maker. Justices are required to recuse themselves in cases in which they own stock of a party.[114]

• "President announces Judge John Roberts as Supreme Court nominee." Office of the Press Secretary, Executive Office of the President.[130]
• "John G. Roberts biography." Office of Legal Policy, U.S. Department of Justice.[131]
• "Biographical Sketches of the Judges of the U.S. Court of Appeals for the DC Circuit." United States Court of Appeals for the District of Columbia Circuit.[132]
• John G. Roberts Questionnaire for Appeals Court Confirmation Hearing (p. 297–339) and responses to Questions from Various Senators (p. 443–461)[133]

Other

• Coffin, Shannen W. "Meet John Roberts: The President Makes the Best Choice." National Review Online. July 19, 2005.[134]
• "Former Hogan & Hartson partner nominated for the U.S. Supreme Court." Hogan & Hartson, LLP. July 20, 2005.[135]
• "John G. Roberts Jr." Oyez.[136]
• "John G. Roberts, Jr. Fact Sheet" La Lumiere School.[137]
• "John G. Roberts federal campaign contributions." Newsmeat.com. July 19, 2005.[138]
• "Progress for America: Support for the Confirmation of John G. Roberts"[139]
• "Report of the Alliance for Justice: Opposition to the Confirmation of John G. Roberts to the U.S. Court of Appeals for the D.C. Circuit." Alliance for Justice.[140]
• Joel K. Goldstein, "Not Hearing History: A Critique of Chief Justice Roberts's Reinterpretation of Brown," 69 Ohio St. L.J. 791 (2008).[141]