5 Things You Need to Know About Roberts

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"We've gotten to the point these days," Roberts said in a 1999 interview on NPR, "where we think the only way we can show we're serious about a problem is if we pass a federal law ... The fact of the matter is, conditions are different in different states." And state laws, he argued, are "more attuned to the different situations in New York as opposed to Minnesota." Among cases that have got the most attention is his dissent to a ruling in which a California developer was stymied by an endangered toad. Since the "hapless toad, for reasons of its own, lives its entire life in California," Roberts argued, it was not part of any interstate commerce that Congress had the power to regulate. If that view prevailed, many statutes protecting the environment, civil rights and worker safety could join the toad on the endangered list. Roberts' dissent is a "pretty big deal," says University of Chicago Law School professor Cass Sunstein. "The fact that he was willing to challenge the Endangered Species Act as a brand-new judge, when lots of his Republican colleagues went the other way, indicates that he really wanted to make a statement."

That will be tricky terrain when he sits in front of the Senate Judiciary Committee next week; it is legislators' regulatory power he would constrain. Chairman Arlen Specter wrote a letter to Roberts previewing a line of questioning: "Members of Congress are irate about the Court's denigrating and, really, disrespectful statements about Congress' competence."

DISCRIMINATION CAN'T SOLVE DISCRIMINATION ...

4. Although times--and people--change, Roberts' early writings on civil rights give a sense of his instinct: one shouldn't use discrimination to battle discrimination. He took a dim view of initiatives to redefine the Voting Rights Act, which he thought should ban only intentional efforts to disenfranchise black voters--hard to prove--and not practices that some civil rights activists claimed had the effect of limiting black voting rights. He argued that Congress could reject court-ordered busing plans on the ground that they did not prevent segregation but promoted it by encouraging "white flight." He complained that theories about "comparable worth," advocated by even some Republican legislators to achieve pay equity between women and men, were "anticapitalist" and could lead to reverse discrimination. "It is difficult to exaggerate the perniciousness of 'comparable-worth theory,'" he wrote. "It mandates nothing less than central planning of the economy by judges." When a group of female Republican House members wrote the White House in support of the theory, Roberts drafted a memorable response: "Their slogan may as well be, 'From each according to his ability, to each according to their gender.'"

Comparable worth has faded as a legal theory--but one of the Republicans he challenged, Maine's Olympia Snowe, is sitting in the Senate that will vote on his nomination. Among Democrats, says Jim Manley, spokesman for Senate Democratic leader Harry Reid, the 1980s memos, "especially on civil rights, are posing some trouble for many members." Roberts' views on these issues could be critical, as Sandra Day O'Connor, whose place he will take, was often the fifth vote supporting affirmative action.

BAN MOMENTS OF SILENCE? "INDEFENSIBLE."