5 Things You Need to Know About Roberts

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5. Roberts is a Catholic who attends a traditional church in Maryland. He has written little on church-state issues, but to many conservatives, the court's worst modern sin, other than Roe, may be the exile of religion from the public square. In rulings dating to 1962, the high court has shut down school prayer, restricted Ten Commandments displays, outlawed prayers at football games. In the 1980s Roberts came out against the court's understanding of church-state separation. He wrote favorably in 1984 of efforts to give religious groups the same rights of assembly on school property that other groups had. The following year he described as "indefensible" a court decision that invalidated Alabama's law allowing a moment of silence.

The court has recently taken small steps to the right, like allowing students to use vouchers to attend religious schools on the ground that they could be used at any private school, not just parochial ones. But many remain confused by a ruling in June on displays of the Ten Commandments. The court said a display in a Kentucky courthouse, which it felt was an attempt by the state to endorse Judeo-Christian beliefs, was unconstitutional but a Texas display could stay because it included historical documents and dated to 1961.

O'Connor tended to vote against anything that looked like government endorsement of religion, as in the recent Ten Commandments decisions, but she favored voucher programs. Democrats suspect Roberts will be more willing to reintroduce religious symbols and language into public space. Senators, particularly New York's Charles Schumer, have said they want to probe Roberts' views on church-state issues like the faith based initiatives that President Bush has promoted.

The key test comes in reconciling the views a judge holds personally with how he allows them to influence his rulings from the bench. Justice Stevens last month made a rare public speech about the high court's need to sublimate personal preferences to judicial precedent and philosophy. Whatever Roberts' private views, he is not likely to reveal them in the hearings. In a sense he has been through this before, as he was heavily involved in preparing O'Connor for her confirmation hearings in 1981. He noted in a memo then that "the approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating a firm command of the subject area." In a memo to O'Connor, he said Senators shouldn't even ask nominees to address cases, in part because they weren't likely to learn much. "If nominees will lie concerning their philosophy," Roberts wrote, "they will lie in response to specific questions as well."

Roberts has learned something about the challenge of wearing black robes since he wrote his memos. As an appeals court judge, "I found that deciding cases was a lot harder than I thought it would be," he told a group of law students last winter. "I kind of thought that in most cases that it would be pretty obvious ... that this person should lose, this person should win, and you'd spend most of your time writing the opinions, [but] I've found that I have to spend far more time than I thought I would just getting to that first step--what the right answer should be." --Reported by Perry Bacon Jr. and Viveca Novak/Washington