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In October 1999, John Roberts Jr. strode up the familiar marble steps of the Supreme Court to defend what might seem like an unusual cause for a Republican lawyer: a race-conscious voting system. Roberts was doing the bidding of his client, the then-Democratic governor of Hawaii whose state’s election for the trustees of the Office of Hawaiian Affairs was under fire because it restricted the vote to descendants of the islands’ indigenous people. “Congress has expressly confirmed a special trust relationship with Hawaiians,” Roberts wrote in the brief. The provision, he added, “is a reasonable and constitutional effort to honor the federal trust.” The Court found otherwise, striking the statute down as a form of race-based voting. But even if the case was not one of Roberts’ victories, his argument in Rice v. Cayetano is striking for whom he represented and who stood behind him in the 7-2 decision: two of the Court’s most liberal justices, Ruth Bader Ginsberg and John Paul Stevens. The case illustrates the difficulties of pinpointing Roberts’ personal beliefs from his more than 12-year career as an attorney in private practice and calculating how they might bear on his role as a Supreme Court justice. As a Washington litigator in Hogan & Hartson’s Supreme Court and appellate division, Roberts spent most of his time representing the sorts of clients that pay the bills of major law firms: large corporations like Toyota Motor Manufacturing, Peabody Coal Co., and Chrysler Corp., as well as trade groups such as the U.S. Chamber of Commerce and the American Gaming Association. But Roberts also took cases on behalf of members of both political parties. And like most lawyers, he used whatever resources he had at his disposal to argue, ranging, for example, from a strict constructionist approach with some statutes to utilizing legislative history with others. Roberts was, by accounts, a skillful advocate for those business and government clients on whose behalf he made his name. He argued, among other things, about the definition of a disability, the rights of Native Alaskans, and the applicability of Title IX. “John has exceptional experience in handling business issues before the Supreme Court and will well understand the legitimate concerns and practical problems of the business community in complying with legal requirements,” says Mark Levy, an attorney at Kilpatrick & Stockton who served as assistant solicitor general during the Clinton administration. Some of Roberts’ critics point to his business background as evidence that he merely served corporate interests. Indeed, his representation of the National Mining Association has often come under question by critics who say his position was detrimental to the environment. And organizations like People for the American Way and MoveOn.org have launched campaigns either opposing or raising questions about Roberts’ nomination. “Overall, you’re talking about a person who has advocated for power over the rights of individual citizens under the law,” says Ben Brandzel, advocacy director for MoveOn.org. But it is difficult to discern how much, if any, of those arguments would come to bear if Roberts is confirmed as a Supreme Court justice. Even Roberts, in response to questions before the Senate Judiciary Committee during his D.C. Circuit confirmation hearing, cautioned reading anything into his positions in private practice. Yet if his arguments in cases like Cayetano, which some liberal lawmakers have seized upon in support of a bill to make Native Hawaiians an Indian tribe, offer any insight into the nominee, it is that he was agile in the positions and clients he took in private practice. “The Hawaii argument is one piece of evidence that Roberts is not so ideologically limited that he would be unable to represent clients with views with which he might disagree,” says Stephen Gillers, a law professor at New York University. CORPORATE CLIENTELE Whoever his clients were, one thing is indisputable: Roberts’ record in private practice was an accomplished one, and included 13 wins out of 19 cases argued at the Supreme Court. And many of his cases have left an imprint in the case law. (Roberts argued a total of 39 cases at the high court, but 20 of those were when he was with the Justice Department.) “He is extremely principled, so he would never make an argument that he didn’t think was supported by the law,” says Lorane Hebert, a Hogan partner who worked with Roberts on a few Supreme Court cases. His work helped define the nature of a disability in the 2002 high court case Toyota v. Ella Williams. The lower court had ruled that Williams was disabled because she had been unable to perform her assembly-line job. But Roberts, on behalf of Toyota, argued that the lower court had defined a disability too narrowly because Williams “could perform almost all other manual tasks at both work and home with no difficulty.” Roberts argued the Court must look at whether an impairment would “substantially limit” a “major life activity.” The justices concurred unanimously in an opinion written by Justice Sandra Day O’Connor. Roberts’ representation of Chrysler Corp. also pushed the government to rework its safety standards. The government had ordered Chrysler to recall 91,000 Chrysler Cirrus and Dodge Stratus cars after one of those cars failed a government-administered safety test. The case ended up in the U.S. Court of Appeals for the D.C. Circuit — Roberts’ future home — where he argued that his client had satisfied the government’s safety standard through the results of its internal testing. Although the company ultimately recalled some of the vehicles, a three-judge panel on the court reversed the recall order in 1998 and said that the government safety board must specify its standards more clearly in the future. Roberts was one of the few private attorneys representing the state governments in the antitrust case against Microsoft Corp. And he and four other Hogan attorneys represented Hartford Fire Insurance Co., one of the defendants in a lawsuit over the amount of insurance that was recoverable from the destruction of the World Trade Center during the Sept. 11, 2001, attacks. Roberts also filed an amicus brief on behalf of Litton Systems for the petitioner in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki, a key 2002 patent case that overturned a lower court ruling that would have invalidated patent infringement protection if an amendment was filed to a patent application. AN ARRAY OF ARGUMENTS Though Roberts has been labeled a conservative, at times his arguments in private practice paralleled liberal viewpoints. While he often relied on constitutional principles or the letter of statutory language as the basis of his claims, he did not hew to a strict Scalia-like approach. One such example was an argument Roberts made for the state of Alaska. In the 1997 case Alaska v. Native Village of Venetie Tribal Government, the state sought to overturn a lower court ruling allowing a Native Alaskan corporation, chartered under the Alaska Native Claims Settlement Act of 1971, to tax a contractor who built a public school on its land. The state contended that it alone had the right to levy a tax and Roberts urged the justices to consider the legislative history of the Settlement Act as proof that Congress had not intended the land at issue to be “Indian country” — land which would give the Native Alaskans separate governing authority. To say otherwise, he argued, would disregard the “clear intent of Congress.” The lower court ruling was overturned unanimously. Still, a number of Roberts’ Supreme Court cases advocated for a strict interpretation of federal rules. For instance, Gonzaga University v. Doe, in 2002, asked whether a student who had won damages from the university under the Family Educational Rights and Privacy Act in the lower court had had the right to bring a civil suit under the act. Representing the university, Roberts argued that the student’s claim was invalid because Congress had not “unambiguously” provided individuals the right to seek damages in the statute. The Court upheld his stance 7-2. Roberts also stood by the letter of the law in a 1999 case in which he represented the National Collegiate Athletics Association. A lower court held that college athletics rules that barred certain graduate students from participating in sports violated Title IX because the group’s members received federal funds. But Roberts successfully argued at the Supreme Court that the NCAA — a private organization — had never entered into a “contract” with the government and was therefore “beyond the statute’s intended and constitutionally permissible reach.” Whatever the argument, however, Roberts tended to make his positions appear to represent the status quo, lawyers who know him say. “John’s thinking always seemed to be predisposed to make his opposition seem like the exception to the readily accepted rule,” says Douglas Kmiec, a law professor at Pepperdine University who served in the Reagan and first Bush administrations. Interestingly, Roberts took this tack in an environmental case whose result has been praised by groups like MoveOn.org. The 2002 Supreme Court case Tahoe-Sierra v. Tahoe Regional Planning Agency hung on whether the Lake Tahoe-area planning agency’s temporary moratorium violated private property owners’ rights and required the agency to compensate them. Representing the agency, Roberts called for a reasonable approach, saying that a building moratorium didn’t necessarily harm the rights of property owners, and that protecting a natural resource like the lake made the regulation worthwhile. Roberts won 6-3, with Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas dissenting. “By coming out with a very moderate position, I think that’s what saved the day,” says Jordan Kahn, assistant agency counsel of the Tahoe agency.
Legal Times intern Hilary Lewis contributed to this story. Emma Schwartz can be contacted at [email protected].

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