John Roberts

Hedgepeth v. Washington Metropolitan Area Transit Authority, 386 F.3d 1148,[38] involved a 12-year-old girl who was arrested, searched, handcuffed, and fingerprinted after she violated a publicly advertised zero tolerance "no eating" policy in a Washington Metro station by eating a single french fry. She was released to her mother three hours later. She sued, alleging that an adult would have only received a citation for the same offense, while children must be detained until parents are notified. The D.C. Circuit unanimously affirmed the district court's dismissal of the girl's lawsuit, which was predicated on alleged violations of the Fourth Amendment (unreasonable search and seizure) and Fifth Amendment (equal protection).

"No one is very happy about the events that led to this litigation," Roberts wrote. Because age discrimination is evaluated using a rational basis test, however, only weak state interests were required to justify the policy, and the panel concluded they were present. "Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen—detention until the parent is notified and retrieves the child—certainly does that, in a way issuing a citation might not." The court concluded that the policy and detention were constitutional, noting that "the question before us ... is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth amendments to the Constitution," language reminiscent of Justice Potter Stewart's dissent in Griswold v. Connecticut. "We are not asked in this case to say whether we think this law is unwise, or even asinine," Stewart had written; "[w]e are asked to hold that it violates the United States Constitution. And that, I cannot do."

In Hamdan v. Rumsfeld, Roberts was part of a unanimous circuit panel overturning the district court ruling and upholding military tribunals set up by the Bush Administration for trying terrorism suspects known as enemy combatants. Circuit Judge A. Raymond Randolph, writing for the court, ruled that Salim Ahmed Hamdan, a driver for al-Qaeda leader Osama bin Laden,[39] could be tried by a military court because:

1. the military commission had the approval of the United States Congress;
2. the Third Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies enforceable in U.S. courts;
3. even if the convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because, for a conflict such as the war against Al-Qaeda (considered by the court as a separate war from that against Afghanistan itself) that is not between two countries, it guarantees only a certain standard of judicial procedure without speaking to the jurisdiction in which the prisoner must be tried.

The court held open the possibility of judicial review of the results of the military commission after the current proceedings ended.[40] This decision was overturned on June 29, 2006, by the Supreme Court in a 5–3 decision, with Roberts not participating due to his prior participation in the case as a circuit judge.[41]

Roberts wrote a dissent in Rancho Viejo, LLC v. Norton, 323 F.3d 1062, a case involving the protection of a rare California toad under the Endangered Species Act. When the court denied a rehearing en banc, 334 F.3d 1158 (D.C. Cir. 2003), Roberts dissented, arguing that the panel opinion was inconsistent with United States v. Lopez and United States v. Morrison in that it incorrectly focused on whether the regulation substantially affects interstate commerce rather than on whether the regulated activity does. In Roberts's view, the Commerce Clause of the Constitution did not permit the government to regulate activity affecting what he called "a hapless toad" that "for reasons of its own, lives its entire life in California." He said that reviewing the panel decision would allow the court "alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent."[42]

During his confirmation hearings, Roberts said that he did not have a comprehensive jurisprudential philosophy, and he did "not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document."[44][45] Roberts compared judges to baseball umpires: "[I]t's my job to call balls and strikes, and not to pitch or bat."[46] Among the issues he discussed during the hearings were:

In Senate hearings, Roberts has stated:

Starting with McCulloch v. Maryland, Chief Justice John Marshall gave a very broad and expansive reading to the powers of the Federal Government and explained generally that if the ends be legitimate, then any means chosen to achieve them are within the power of the Federal Government, and cases interpreting that, throughout the years, have come down. Certainly, by the time Lopez was decided, many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren't going to be thrown out that way. Lopez certainly breathed new life into the Commerce Clause. I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It's not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That's a very important factor. It wasn't present in Lopez at all. I think the members of Congress had heard the same thing I had heard in law school, that this is unimportant—and they hadn't gone through the process of establishing a record in that case.[45]

Roberts stated the following about federalism in a 1999 radio interview:

We have gotten to the point these days where we think the only way we can show we're serious about a problem is if we pass a federal law, whether it is the Violence Against Women Act or anything else. The fact of the matter is conditions are different in different states, and state laws can be more relevant is I think exactly the right term, more attuned to the different situations in New York, as opposed to Minnesota, and that is what the Federal system is based on.[47]

At a Senate hearing, Roberts stated:

The Supreme Court has, throughout its history, on many occasions described the deference that is due to legislative judgments. Justice Holmes described assessing the constitutionality of an act of Congress as the gravest duty that the Supreme Court is called upon to perform. ... It's a principle that is easily stated and needs to be observed in practice, as well as in theory. Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic.[45]

On the subject of stare decisis, referring to Brown v. Board of Education, the decision overturning school segregation, Roberts said that "the Court in that case, of course, overruled a prior decision. I don't think that constitutes judicial activism because obviously if the decision is wrong, it should be overruled. That's not activism. That's applying the law correctly."[48]

While working as a lawyer for the Reagan Administration, Roberts wrote legal memos defending administration policies on abortion.[49] At his nomination hearing Roberts testified that the legal memos represented the views of the administration he was representing at the time and not necessarily his own.[50] "Senator, I was a staff lawyer; I didn't have a position," Roberts said.[50] As a lawyer in the George H. W. Bush Administration, Roberts signed a legal brief urging the court to overturn Roe v. Wade.[51]

In private meetings with senators before his confirmation, Roberts testified that Roe was settled law, but added that it was subject to the legal principle of stare decisis,[52] meaning that while the Court must give some weight to the precedent, it was not legally bound to uphold it.

In his Senate testimony, Roberts said that, while sitting on the Appellate Court, he had an obligation to respect precedents established by the Supreme Court, including the right to an abortion. He stated: "Roe v. Wade is the settled law of the land. ... There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey." Following the traditional reluctance of nominees to indicate which way they might vote on an issue likely to come before the Supreme Court, he did not explicitly say whether he would vote to overturn either.[44] However, Jeffrey Rosen adds, "I wouldn't bet on Chief Justice Roberts's siding unequivocally with the anti-Roe forces."[53]

On September 22, the Senate Judiciary Committee approved Roberts's nomination by a vote of 13–5, with Senators Ted Kennedy, Richard Durbin, Charles Schumer, Joe Biden and Dianne Feinstein voting against. Roberts was confirmed by the full Senate on September 29 by a margin of 78–22.[54] All Republicans and the one Independent voted for Roberts; the Democrats split evenly, 22–22. Roberts was confirmed by what was, historically, a narrow margin for a Supreme Court justice.[55] However, all subsequent confirmation votes have been even more narrow.[56][57][58][59]

On January 17, 2006, Roberts dissented along with Antonin Scalia and Clarence Thomas in Gonzales v. Oregon, which held that the Controlled Substances Act does not allow the United States attorney general to prohibit physicians from prescribing drugs for the assisted suicide of the terminally ill as permitted by an Oregon law. The point of contention in the case was largely one of statutory interpretation, not federalism.

On March 6, 2006, Roberts wrote the unanimous decision in Rumsfeld v. Forum for Academic and Institutional Rights that colleges accepting federal money must allow military recruiters on campus, despite university objections to the Clinton Administration-initiated "don't ask, don't tell" policy.

Following his concurrence in Citizens United v. FEC (2010), Roberts wrote the majority decision for another landmark campaign finance case called McCutcheon v. FEC (2014). In McCutcheon the Court ruled that "aggregate limits" on the combined amount a donor could give to various federal candidates or party committees violated the First Amendment.[62][80]

Roberts wrote his first dissent in Georgia v. Randolph (2006). The majority's decision prohibited police from searching a home if both occupants are present but one objected and the other consented. Roberts criticized the majority opinion as inconsistent with prior case law and for partly basing its reasoning on its perception of social custom. He said the social expectation test was flawed because the Fourth Amendment protects a legitimate expectation of privacy, not social expectations.[81]

In Utah v. Strieff (2016), Roberts joined the majority in ruling (5–3) that a person with an outstanding warrant may be arrested and searched, and that any evidence discovered based on that search is admissible in court; the majority opinion held that this remains true even when police act unlawfully by stopping a person without reasonable suspicion, before learning of the existence of the outstanding warrant.[82]

In Carpenter v. United States, a landmark decision involving privacy of cellular phone data, Roberts wrote the majority opinion in a 5–4 ruling that searches of cellular phone data generally require a warrant.[83]

Although Roberts has often sided with Scalia and Thomas, he also provided a crucial vote against their mutual position in Jones v. Flowers, siding with liberal justices of the court in ruling that, before a home is seized and sold in a tax-forfeiture sale, due diligence must be demonstrated and proper notification needs to be sent to the owners. Dissenting justices were Anthony Kennedy, Antonin Scalia and Clarence Thomas, while Roberts's opinion was joined by David Souter, Stephen Breyer, John Paul Stevens and Ruth Bader Ginsburg. Samuel Alito did not participate.

On the Supreme Court, Roberts has indicated he supports some abortion restrictions. In Gonzales v. Carhart (2007), he voted with the majority to uphold the constitutionality of the Partial-Birth Abortion Ban Act. Justice Anthony Kennedy, writing for a five-justice majority, distinguished Stenberg v. Carhart, and concluded that the Court's previous decision in Planned Parenthood v. Casey did not prevent Congress from banning the procedure. The decision left the door open for future as-applied challenges, and did not address the broader question of whether Congress had the authority to pass the law.[84] Justice Clarence Thomas filed a concurring opinion, contending that the Court's prior decisions in Roe v. Wade and Casey should be reversed; Roberts declined to join that opinion.

In 2018, Roberts and Brett Kavanaugh joined four more liberal justices in declining to hear a case brought by the states of Louisiana and Kansas to deny Medicaid funding to Planned Parenthood,[85] thereby letting stand lower court rulings in favor of Planned Parenthood.[86] Roberts also joined with liberal justices in 5–4 decisions temporarily blocking a Louisiana abortion restriction (2019)[87] and later striking down that law (June Medical Services, LLC v. Russo (2020)).[88][89] The law at issue in June was similar to one the court struck down in Whole Woman's Health v. Hellerstedt (2016), which Roberts had voted to uphold;[90][91] in his June opinion, Roberts wrote that while he believed Whole Woman's Health was wrongly decided he was joining the majority in June out of respect for stare decisis.[90] It was the first time in his 15 years on the Supreme Court that Roberts had cast a vote to invalidate a law that regulated abortion.[92] In September 2021, the Supreme Court declined an emergency petition to temporarily block enforcement of the Texas Heartbeat Act, which bans abortion after six weeks of pregnancy except to save the mother's life. In a 5–4 vote, Roberts joined Breyer, Sotomayor, and Kagan in the minority.[93] In 2022, Roberts declined to join the majority opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade. Roberts wrote a concurring opinion supporting only the decision to uphold the Mississippi abortion statute, stating that the right to an abortion should "extend far enough to ensure a reasonable opportunity to choose, but need not extend any further". Roberts also declined to join the dissenting opinion of Justices Breyer, Sotomayor, and Kagan.

On November 4, 2016, Roberts was the deciding vote in a 5–3 decision to stay an execution.[94] On February 7, 2019, Roberts was part of the majority in a 5–4 decision rejecting a Muslim inmate's request to delay execution in order to have an imam present with him during the execution.[95] Also, in February 2019, Roberts sided with Justice Kavanaugh and the court's four liberal justices in a 6–3 decision to block the execution of a man with an "intellectual disability" in Texas.[96][97]

Roberts opposes the use of race in assigning students to particular schools, including for purposes such as maintaining integrated schools.[98] He sees such plans as discrimination in violation of the Constitution's Equal Protection Clause and Brown v. Board of Education.[98][99] In Parents Involved in Community Schools v. Seattle School District No. 1, the Court considered two voluntarily-adopted school district plans that relied on race to determine which schools certain children may attend. The Court had held in Brown that "racial discrimination in public education is unconstitutional,"[100] and later, that "racial classifications, imposed by whatever federal, state, or local governmental actor, ... are constitutional only if they are narrowly tailored measures that further compelling governmental interests,"[101] and that this "[n]arrow tailoring ... require[s] serious, good faith consideration of workable race-neutral alternatives."[102] Roberts cited these cases in writing for the Parents Involved majority, concluding that the school districts had "failed to show that they considered methods other than explicit racial classifications to achieve their stated goals."[103] In a section of the opinion joined by four other Justices, Roberts added that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Roberts authored the 2007 student free speech case Morse v. Frederick, ruling that a student in a public school-sponsored activity does not have the right to advocate drug use on the basis that the right to free speech does not invariably prevent the exercise of school discipline.[104]

On April 20, 2010, in United States v. Stevens, the Supreme Court struck down an animal cruelty law. Roberts, writing for an 8–1 majority, found that a federal statute criminalizing the commercial production, sale, or possession of depictions of cruelty to animals was an unconstitutional abridgment of the First Amendment right to freedom of speech. The Court held that the statute was substantially overbroad; for example, it could allow prosecutions for selling photos of out-of-season hunting.[105]

On June 28, 2012, Roberts delivered the majority opinion in National Federation of Independent Business v. Sebelius, which upheld the Patient Protection and Affordable Care Act by a 5–4 vote. The Court indicated that although the "individual mandate" component of the Act could not be upheld under the Commerce Clause, the mandate could be construed as a tax and was therefore ruled to be valid under Congress's authority to "lay and collect taxes."[106][107] The Court overturned a portion of the law related to the withholding of funds from states that did not comply with the expansion of Medicaid; Roberts wrote that "Congress is not free ... to penalize states that choose not to participate in that new program by taking away their existing Medicaid funding."[107] Sources within the Supreme Court state that Roberts switched his vote regarding the individual mandate sometime after an initial vote[108][109] and that Roberts largely wrote both the majority and minority opinions.[110] This extremely unusual circumstance has also been used to explain why the minority opinion was also unsigned, itself a rare phenomenon from the Supreme Court.[110]

In Hollingsworth v. Perry (2013), Roberts wrote the 5–4 majority opinion holding that Petitioners, appealing a lower court ruling that California's Proposition 8 was unconstitutional, lacked standing to sue, with the result that same-sex marriages resumed in California.[111] Roberts dissented in United States v. Windsor in which the 5-4 majority ruled that key parts of the Defense of Marriage Act were unconstitutional.[112] The case stated the federal government must recognize same-sex marriages that have been approved by certain states. He dissented in the Obergefell v. Hodges case in which Kennedy wrote for the majority, again 5–4, that same-sex couples had a right to marry.[113] In Pavan v. Smith, the Supreme Court "summarily overruled" the Arkansas Supreme Court's decision that the state did not have to list same-sex spouses on birth certificates; Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented, but Roberts did not join their dissent, leaving open speculation that he might have ruled with the majority.[114] In the cases of Bostock v. Clayton County, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (2020), heard together, Roberts ruled with the 6–3 majority deciding that businesses cannot discriminate against LGBT people in matters of employment.[115] In October 2020, Roberts joined the justices in an "apparently unanimous" decision to reject an appeal from Kim Davis, who refused to provide marriage licenses to same-sex couples.[116]

In Fulton v. City of Philadelphia (2021), Roberts joined the justices in a unanimous decision in favor of a Catholic adoption agency which had been denied a contract by the City of Philadelphia for its policy refusing to adopt to same-sex couples; he was also part of the majority that declined to reconsider or overturn Employment Division v. Smith, "an important precedent limiting First Amendment protections for religious practices."[117] Also in 2021, he was one of the six justices who declined to hear an appeal by a Washington State florist who refused service to a same-sex couple based on her religious beliefs against same-sex marriage; because four votes are required to hear a case, the lower court judgments against the florist remain in place.[118][119][120] In November 2021, Roberts voted with the majority of justices in a 6–3 decision to reject an appeal from Mercy San Juan Medical Center, a hospital affiliated with the Roman Catholic Church, which had sought to deny a hysterectomy to a transgender patient on religious grounds.[121] Justices Thomas, Alito, and Gorsuch dissented; the vote to reject the appeal left in place a lower court ruling in favor of the transgender patient.[122][123]

During his tenure as Chief Justice of the Supreme Court, Roberts has struck down voting rights protections provided by the Voting Rights Act.[124][125][126] In Shelby County v. Holder (2013), Roberts struck down requirements that states and localities with a history of racially motivated voter suppression obtain federal preclearance before implementing any changes to voting laws. Research shows that preclearance had led to increases in minority congressional representation and minority turnout.[127][128] Five years after the ruling, nearly 1,000 U.S. polling places had closed, many of them in predominantly African-American counties. There were also cuts to early voting, purges of voter rolls and imposition of strict voter ID laws.[129][130] A 2020 study found that jurisdictions that had previously been covered by preclearance substantially increased their voter registration purges after the Shelby decision.[131] Virtually all restrictions on voting subsequent to the ruling were enacted by Republicans.[132]

In 2007, Roberts had a seizure at his vacation home in St. George, Maine[137][138] and stayed overnight at a hospital in Rockport, Maine;[139] doctors found no identifiable cause.[137][138][140][141] Roberts had suffered a similar seizure in 1993[137][138][140] but an official Supreme Court statement said that a neurological evaluation "revealed no cause for concern." Federal judges are not required by law to release information about their health.[137]

On June 21, 2020, Roberts fell at a Maryland country club; his forehead required sutures and he stayed overnight in the hospital for observation. Doctors ruled out a seizure and believed dehydration had made Roberts light-headed.[142]

According to a disclosure Roberts submitted to the Senate Judiciary Committee prior to his Supreme Court confirmation hearings, Roberts's net worth was more than $6 million, including $1.6 million in stocks. In joining the D.C. Circuit Court of Appeals in 2003, he took a pay cut from $1 million a year to $164,000; as Chief Justice his salary is $286,700 as of 2022.[143]

In 2010, Roberts sold his stock in Pfizer because he was set to hear two pending cases involving the company.[144]

• Becker, Jo; Argetsinger, Amy (July 22, 2005). "The Nominee As a Young Pragmatist". The Washington Post. Archived from the original on June 29, 2011. Retrieved May 6, 2010.
• Goodnough, Abby (July 21, 2005). "Nominee Gave Quiet Advice on Recount" Archived October 7, 2014, at the Wayback Machine The New York Times.
• Lane, Charles (July 21, 2005). "Federalist Affiliation Misstated". The Washington Post. Archived from the original on June 29, 2011. Retrieved May 6, 2010.
• Lane, Charles (July 21, 2005). "Short Record as Judge Is Under a Microscope". The Washington Post. Archived from the original on June 29, 2011. Retrieved May 6, 2010.
• "Colleagues call high court nominee a smart, self-effacing 'Eagle Scout'". The New York Times. July 20, 2005. Archived from the original on May 12, 2013. Retrieved February 19, 2017.</ref>
• Smith, R. Jeffrey; Becker, Jo (July 20, 2005). "Record of Accomplishment – and Some Contradictions". The Washington Post. Archived from the original on June 29, 2011. Retrieved May 6, 2010.

• "John G. Roberts, Jr". Oyez.org. Archived from the original on April 4, 2016. Retrieved April 26, 2016.
• "NEWSMEAT ▷ John G Roberts's Federal Campaign Contribution Report". Newsmeat.com. August 5, 2010. Archived from the original on June 28, 2011. Retrieved August 26, 2010.
• Joel Goldstein (2008). "Not Hearing History: A Critique of Chief Justice Robert's Reinterpretation of Brown". Ohio State Law Journal. 69 (5). SSRN 1387162.
• "HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE: ONE HUNDRED EIGHTH CONGRESS" (PDF). Access.gpo.gov. Archived from the original (PDF) on February 6, 2012. Retrieved May 21, 2015.