How John Roberts could change your life

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON -

Swap John Roberts for Sandra Day O'Connor and what do you get?

The answers will come in hundreds of cases over the next 25 or 30 years, if the Senate confirms his nomination to the Supreme Court.

But the Roberts Effect will begin to emerge in what he says during oral arguments on the cases that are on the court's docket for the term that begins Oct. 3, and in the opinions he writes in those cases.

From the right of doctors to help people commit suicide to the powers of the police to search our homes, Roberts's votes will shape the rules under which Americans live.

His two-year stint on the federal appeals court in Washington offers a few hints on his judicial philosophy. Some indicators also come from his career as deputy solicitor general in the administration of George H.W. Bush and as a Justice Department official in the Reagan administration.

Here are some of the contentious social issues on this fall's docket which Roberts would confront, if confirmed.  

Assisted suicide
In a test of the nation’s only physician-assisted suicide law, a case called Gonzales v. Oregon, slated for oral argument on Oct. 3, the justices will decide whether the Bush administration can use the 1970 Controlled Substances Act to prevent Oregon doctors from helping very ill people kill themselves.

In 2001, then-Attorney General John Ashcroft prohibited Oregon physicians from prescribing drugs to assist suicides. He cited a federal regulation which says a prescription for a controlled substance “must be issued for a legitimate medical purpose.” Suicide is not a legitimate medical purpose, he ruled.

Supporters of the Oregon law say the history of the Controlled Substances Act shows that Congress never gave the attorney general the power to decide which state-approved medical practices are legitimate.

“The burden for Department of Justice is to convince Roberts and the court that the former attorney general (Ashcroft) did not overreach,” said Doug Kmiec, a former official in the Justice Department during the Reagan administration who now teaches at Pepperdine Law School.

In his dissent in a 2003 case testing whether the Endangered Species Act applies to purely intrastate species, Roberts expressed skepticism about how far the federal government's regulatory power, based on the power of Congress to regulate interstate commerce, can reach into states.

He questioned whether building a housing development that disrupted the habitat of "a hapless toad that for reasons of its own, lives its entire life in California" really constituted interstate commerce.

Proponents of the assisted suicide law cast the conflict as one of defending states' rights — here, the right of a state to regulate how doctors in that state practice medicine — against an overweening federal government.

Although the legal reasoning may be different in the Oregon case from the toad case, his dissent shows that in some instances Roberts is sympathetic to strict limits on the power of federal government.

Abortion for minors
If assisted suicide isn't controversial enough for you, Roberts and the justices will also deal with another hotly contested social issue: Should a state, in this case New Hampshire, be allowed to require parental notification before minor girls get an abortion?

Ayotte v. Planned Parenthood of Northern New England, set for oral argument on Nov. 30, will be the first abortion case to come before the court since O'Connor announced her retirement.

The court has held in previous cases that states can not place an "undue burden" on women seeking abortions. The New Hampshire case offers the court an opportunity to alter or jettison the "undue burden" standard and make it easier for states to restrict abortion.

Five years ago, O'Connor was in the five-justice majority in the last major abortion case the court took on, when it struck down Nebraska's law banning the practice known as partial-birth abortion.

Roberts's own views on abortion and parental notification are not yet known. But abortion rights groups decry him for arguing in a 1993 case that abortion clinic operators could not use an 1871 civil rights law to sue the anti-abortion group Operation Rescue for blocking access to clinics.

Roberts said the clinic operators could use state laws to fight Operation Rescue. The Supreme Court agreed with his position.

Roberts’s role in that case “could be an ominous indicator of his position on women's rights," warned Karen Pearl, interim president of Planned Parenthood Federation of America in a statement last week. “There are reasons to be seriously concerned about whether he would vote to protect women's health and safety in cases such as Ayotte v. Planned Parenthood….”

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