[Mb-civic] Roberts

[ean at sbcglobal.net]

To: Earthjustice Supporters
From: Buck Parker, Executive Director

Supreme Court nominee may threaten environmental protections

 President Bush has nominated Judge John G. Roberts, Jr. to replace 
Sandra Day O'Connor on the Supreme Court.

This development dramatically raises the stakes for the environment.

Given his record so far, we have reason for concern. From his seat on 
the D.C. Circuit Court of Appeals, Judge Roberts was one of only two 
judges to argue for a review of a decision that upheld the 
constitutionality of key Endangered Species Act safeguards. Roberts's 
dissent advanced a distorted view of congressional power that could 
threaten to undermine a wide swath of environmental protections, 
including those provided under the Clean Water Act. 

Roberts also demonstrated a callous attitude toward our nation's 
strong support for protecting threatened and endangered species. As 
noted today in The New York Times, Washington Post, and USA 
Today, Roberts famously questioned whether Congress has the power 
to prevent the extinction of what he flippantly called "a hapless toad 
that, for reasons of its own, lives its entire life in California."

The Senate's decision on whether to confirm Roberts's nomination has 
the potential to threaten basic environmental laws almost immediately. 
Industry groups already have filed lawsuits raising constitutional and 
other challenges to a wide range of federal environmental protections. 
The laws under attack include the Clean Water Act, the Clean Air Act, 
and statutes that protect the health, safety, and rights of working 
families and consumers. As a Supreme Court Justice, Judge Roberts 
would have the power to reverse decades of progress in protecting 
public health and our environment.

The American people want this country to continue moving forward. 
We don't want to roll back the progress we have made in protecting 
the air we breathe, the water we drink, and the wild places that are our 
natural heritage. The public has the right to insist that the highest court 
in our country be fair, balanced, and independent from powerful 
special interests. 

We must make sure the Senate, which has the responsibility of 
deciding whether to confirm Supreme Court nominees, hears us loud 
and clear. Throughout the coming days and weeks, Earthjustice will be 
asking for your help. Together we will demand that the Senate carefully 
and independently review this nomination. The Senate must make 
sure all relevant questions are asked and fully answered, and it must 
determine whether, as a Supreme Court justice, Judge Roberts would 
uphold the authority of Congress to protect public health and our 
environment.

Please stay tuned as we keep you updated throughout the nomination 
process.

Thank you for standing with us at this critical time.

----

John G. Roberts, Jr.

D.C. Circuit Judge, Supreme Court Nominee

     D.C. Circuit Judge John Roberts's record should disqualify him from
elevation to the Supreme Court.  Among other things, Roberts is hostile to
women's reproductive freedom, and he has taken positions in religious
liberty and free speech cases that were detrimental to those fundamental
rights.  Roberts has limited judicial experience, but even his short
tenure as a judge raises serious concerns about his ideology and judicial
philosophy.

Short biography

     Roberts received his law degree from Harvard Law School, and then
clerked for Judge Henry Friendly on the United States Court of Appeals for
the Second Circuit, and for then-Associate Justice William Rehnquist.
Following his clerkships, Roberts worked in the Reagan Administration,
first as a Special Assistant to Attorney General William French Smith
(August 1981-November 1982), and then as Associate Counsel to the
President (November 1982-May 1986).  Roberts then entered private practice
as an associate at Hogan & Hartson, where he became a partner in 1987.  He
left the firm in October 1989 to serve in the Administration of President
George H.W. Bush as the Principal Deputy Solicitor General, also called
the "political" Deputy.  In this position Roberts was able personally to
influence the legal decisions and positions taken by the Administration.
Roberts left the Solicitor General's office in January 1993 and returned
to Hogan & Hartson, where he was a partner until his confirmation to the
D.C. Circuit in May 2003.

Reproductive Freedom

     Roberts has a record of hostility to women's reproductive freedom and
has sought to have the Supreme Court overturn Roe v. Wade.  In 1990, for
example, Roberts, then Deputy Solicitor General, co-authored a brief for
the government in Rust v. Sullivan, 500 U.S. 173 (1991).  Although Rust
did not directly concern the validity of Roe itself, Roberts nonetheless
argued that "[w]e continue to believe that Roe was wrongly decided and
should be overruled . . . [T]he Court's conclusion[] in Roe that there is
a fundamental right to an abortion . . . find[s] no support in the text,
structure, or history of the Constitution."[1]

     Also as Deputy Solicitor General, Roberts co-authored an amicus
     curiae
brief in the Supreme Court in Bray v. Alexandria Women's Health Clinic,
506 U.S. 263 (1993), on behalf of the government in support of the radical
anti-choice group Operation Rescue and six individuals who had obstructed
access to reproductive health care clinics.  Roberts's brief contended
that the protesters' conduct did not constitute discrimination against
women, "even though only women can have abortions."[2]

Religious Liberty

     In 1991, as Deputy Solicitor General, Roberts co-authored an amicus
curiae brief filed by the United States in the case of Lee v. Weisman, 505
U.S. 577 (1992), in which he urged the Court to rule that it was
constitutional for a public school to sponsor prayer at its graduation
ceremonies.  In a 5-4 decision authored by Justice Kennedy, the Court
rejected Roberts's argument.  The majority specifically criticized the
government's argument for its erroneous First Amendment analysis.  In
addition, Roberts's brief had urged the Court to jettison the test that
the Court has long-employed to determine the constitutionality of
challenged laws and practices under the Establishment Clause.

Free Speech

     As Deputy Solicitor General, Roberts co-authored the government's
     brief
in United States v. Eichman, 496 U.S. 310 (1990), contending that the Flag
Protection Act of 1989, which criminalized flag burning, was
constitutional. In a 5-4 ruling, the Supreme Court majority, including
Justice Scalia, disagreed, holding that the law violated the First
Amendment.

     Roberts's brief had also urged the Court to reconsider a ruling that
     it
had handed down only the Term before, rejecting the claim that flag
burning does not enjoy the full protection of the First Amendment.  This
calls into question Roberts's views of stare decisis.  The Court expressly
declined the government's invitation.  496 U.S. at 315.

Federalism and "states' rights" and the environment

     In Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003), cert.
denied, 124 S. Ct. 2061 (2004), Judge Roberts issued a troubling dissent
from the decision by the full D.C. Circuit not to reconsider the important
ruling by the three-judge panel in this case upholding the
constitutionality of the Endangered Species Act as applied to a real
estate development project in California.  Roberts's dissent strongly
suggested that he thought it would be unconstitutional to apply the
Endangered Species Act in this case.  The only other dissenter was Judge
David Sentelle.  All of the other Republican-appointed judges on the court
joined the court's Democratic appointees in voting to deny rehearing en
banc.

Individual Rights

     In Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148 (D.C.
Cir. 2004), Judge Roberts wrote the unanimous decision for a three-judge
panel rejecting the civil rights claims brought on behalf of a 12-year-old
girl who had been handcuffed, arrested and taken away by the police for
eating a single french fry in the D.C. Metro.  Among other things,
Roberts's opinion rejected the claim that the girl's equal protection
rights had been violated because, under then-D.C. law, an adult in the
same situation would only have been given a citation, while the police
were required to arrest juveniles.  According to Roberts, the law
requiring harsher treatment of juveniles was rationally related to "the
legitimate goal of promoting parental awareness and involvement with
children who commit delinquent acts."  386 F.3d at 1156.

     Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), was a suit
filed under the terrorism exception to the Foreign Sovereign Immunities
Act against the Republic of Iraq, the Iraqi Intelligence Service, and
Saddam Hussein by seventeen American soldiers who had been held as
prisoners of war and tortured by Iraq during the Gulf War.  Two of the
judges on the panel, Harry Edwards and David Tatel, rejected the
government's argument that the district court did not have jurisdiction
over the case.  Judge Roberts, however, would have adopted the position of
the government that federal law "deprived the courts of jurisdiction over
suits against Iraq" for damages resulting from torture and other terrorist
acts.  Id. at 65.  The result would have been to deprive Americans
tortured in Iraq of any possible relief in federal court.


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[1]     Brief for the Respondent, Rust v. Sullivan, 1989 U.S. Briefs 1391
(1990), at 7 (LEXIS pagination).

[2]     Brief for the United States as Amicus Curiae Supporting
Petitioners, Bray v. Alexandria Women's Health Clinic, 1990 U.S. Briefs
985 (1991), at 3 (LEXIS pagination).

***

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