After watching several hours of his confirmation hearings on C-SPAN, it seems all but certain that John Roberts will be the next Chief Justice of the Supreme Court. Barring the sudden appearance of an Anita Hill (the woman who came forward 14 years ago with sexual harassment claims against Clarence Thomas and nearly derailed that confirmation), we will be living under a court led by Judge Roberts for many years. Like everything to do with Roberts, only a rough prediction of his potential impact on business can be gleaned from his record. Former Michigan governor John Engler, now president of the National Association of Manufacturers, has indicated Roberts can help lead the court to "achieve a business environment that is fair and predictable." This vague endorsement confirms what we'd expect given Roberts' employment history (the Reagan administration is not exactly known for reigning in free markets). In private practice, he worked for Hogan & Hartson LLP, the largest firm in Washington D.C. and accordingly no stranger to business law.
One of Roberts' more telling business-related opinions to date is his dissenting argument for the rehearing of Rancho Viejo, LLC. v. Norton. He posits that Congress' power to regulate interstate commerce is not broad enough to warrant the protection of a particular species of toad under the Endangered Species Act. While the fate of this particular toad does not affect business, Roberts' dissent reveals a relatively narrow interpretation of the commerce clause.
The commerce clause is not as exciting as free speech or abortion rights, but its interpretation has a profound effect on all citizens' wellbeing. It is through this clause, which allows congress to regulate commerce "among the several states," that we have federal laws encompassing environmental protection, public health, consumer safety, and civil rights in hiring. That is, of course, only if the court reads the commerce clause as allowing this. Up until the Great Depression, the federal government had very little latitude to control business practices. President Roosevelt found the sitting Supreme Court a serious roadblock to his "hands-on" recovery plan-it was only after a number of years and threats of packing the court (i.e. adding more than 9 justices to tip the scales) that the new, broad interpretation of the commerce clause to be. Under this new standard, as long as a statue possesses even an ambiguous, indirect relation to intersate commerce, it was deemed constitutional.
This reading stood until late last century, when the Rehnquist Court ruled in United States v. Lopez that Congress was overstepping constitution bounds with the Gun-Free School Zones Act. It might seem odd that Congress had passed such an act on the grounds that it affected interstate commerce, but that only demonstrates the fast and loose reading of the clause that the Court had allowed for 60 years. Lopez threw hundreds of statues into question.
Lower state and federal courts have been trying to makes sense of the new standard ever since. If limiting gun possession near schools isn't constitutional, then perhaps the Americans with Disabilities Act isn't either? If the simple fact that guns are sold across state lines isn't "good enough" to qualify certain federal restrictions, then forcing a local business to have a wheelchair ramp might be similarly inappropriate. Despite some related decisions in the intervening years, a clearer standard has not yet been established. There will be plenty of chances for Roberts' views on the commerce clause to settle this ambiguity.
With the exception of the Grokster internet file-sharing case, the Supreme Court has seen few landmark business cases recently. One potential candidate is tort reform. As Congress continues to consider reform legislation (think limiting class action and personal injury lawsuits), the constitutionality of these new acts may soon come before the high court and provide us with a better measure of Roberts' attitude towards business.
Business matters aside, Roberts' largest contribution to American law will likely stem from his views on more personal issues such as privacy and civil rights. To better understand John Roberts, it's worth taking a look at how this Midwestern son found himself donning these particular black robes.
Even before the hearings commenced, it was clear President Bush made a safe choice.
Roberts has an essentially perfect record as a student at Harvard (summa from undergrad, magna from the law school) and a stellar career as a Supreme Court specialist and public servant in the executive branch. However, having an exemplary resume is merely a necessary condition for nomination, not a sufficient condition for confirmation. That said, Roberts is a safe choice beyond his credentials. His family is, by media standards, adorable; Roberts' wife Jane even wears a pillbox hat (a female friend was astute enough to notice this similarity to Jackie Kennedy). Consequently, he doesn't seem as frightening as Robert Bork did, whose failed 1987 nomination we'll return to shortly.
Aesthetics aside, there are a number of more legitimate reasons Roberts has always been likely to make it through unscathed. Roberts does not have a long career speaking in his own voice. In both private practice and as Deputy Solicitor General, he was an advocate for his client's views. Democratic Senators lobbied successfully for the release of his notes and other documents related to his work in the executive branch. While some of his notes indicate a conservative bent and abnormal deference to the executive, he was after all working for the Reagan administration and this should not have surprised any senators.
In his short tenure on the D.C. Circuit Court he did not hear any "hot-button" issue cases. Nominee Bork, in contrast, had earned a reputation on the bench and as a professor at Yale Law School for his unusually conservative views (e.g. the 1st Amendment's free speech clause only applies to political speech ergo artists have no constitutional protection).
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