Where He Stands

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CHURCH AND STATE

While Deputy Solicitor General in the early 1990s, Roberts co-signed a brief that unsuccessfully argued that a public school should be allowed to include a religious benediction as part of a graduation ceremony. In another case concerning the the role of religion in public life, Roberts fared better, helping prevent a public school from barring a religious group from meeting on its grounds after school. Upcoming Cases: One involves whether the government can prohibit a small Brazilian-American religious sect from importing a hallucinogenic tea (and controlled substance) for use in rituals.

RACE

As Deputy Solicitor General, Roberts co-authored two briefs calling for an end to court-supervised desegregation in Oklahoma and Georgia. The U.S. argued successfully in each case that enough progress had been made and that schools could be lifted from orders requiring that they integrate. On the other hand, in 1991 Roberts co-authored a government brief alleging that Mississippi was still overseeing a racially segregated system of public universities; that view was upheld. As for affirmative action, Roberts touched on the issue as a private attorney in 2001, writing a friend-of-the-court brief in support of Adarand Constructors in its long-running, ultimately unsuccessful legal battle against racial preferences in the federal highway program's subcontracting awards.

ENVIRONMENT

As a private attorney, Roberts helped a local planning agency uphold regulations barring development around Lake Tahoe. But while working for the first Bush Administration, Roberts helped persuade the Supreme Court in two cases to narrow the grounds on which environmental groups could sue the Federal Government. What has the greens most worried is a dissent filed by Roberts on a request for a rehearing by a California real estate developer in a case involving the threatened arroyo toad, protected under the Endangered Species Act. Roberts argued that the plaintiffs should at least be granted a second hearing by the full court because the Constitution's commerce clause, which says Congress may pass laws controlling interstate commerce, was being misapplied; it does not authorize Congress to pass laws protecting, he wrote, "a hapless toad that, for reasons of its own, lives its entire life in California." Legal experts wonder if he might use this reasoning to attack other laws, not just environmental laws, that are based on broad readings of the commerce clause.

FREE SPEECH

In 1990 Roberts co-wrote the government's brief arguing that a new law criminalizing flag burning was in fact constitutional. But as a private attorney, he successfully helped Soldier of Fortune magazine fight a suit brought by a woman charging that the magazine had been negligent in running an ad that her son-in-law had used to hire a hit man to kill her daughter. Upcoming Cases: One revolves around whether Congress can withhold funding from universities that claim they have a First Amendment right to make it hard for the military to recruit on campus because they view its "Don't ask, don't tell" policy as discriminatory.

CRIME AND PUNISHMENT