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In all the swirling controversy over what John Roberts Jr. believes, it has been the rare moment when the nominee has been caught in the act of being himself. But in a 1993 law review article Roberts penned shortly after his departure from the government, he holds little back about his own views � and offers a passionate defense of Justice Antonin Scalia. The article, which addresses access to the federal courts, appears to embrace Scalian philosophies of limited government, judicial restraint, and originalism � concepts about which Roberts’ stance has to date appeared uncertain to both conservatives and liberals. Roberts’ article in the Duke Law Journal addresses standing � the judicial doctrine that determines whether a plaintiff has the right to bring suit to challenge a government rule or action. It is largely a rebuttal to critics of the 1992 Supreme Court opinion, written by Scalia, in Lujan v. Defenders of Wildlife. In that decision, hailed by the right and attacked by the left as well as by a broad swath of legal scholars, the Court made clear that plaintiffs must suffer a concrete, discernible injury � not a “conjectural or hypothetical one” � to be able to bring suit in federal court. It, in effect, made it more difficult for plaintiffs to challenge the actions of a government agency when the actions don’t directly affect them. “When the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish,” Scalia wrote in the decision. A DEPARTURE FROM THE NORM Roberts had a personal stake in Lujan. He had represented Interior Secretary Manuel Lujan Jr. before the high court as deputy solicitor general in President George H.W. Bush’s administration. Throughout his career, Roberts has often been careful about his public statements, and even in the debate surrounding his Supreme Court nomination, most of the attention has been paid to work Roberts has done on behalf of a client, be it in private practice or as a government lawyer. But in 1993, with a Democrat in the White House and his own nomination to the U.S. Court of Appeals for the D.C. Circuit from the previous year dead on the vine, Roberts spoke candidly. He had just returned to private practice at Hogan & Hartson and wrote the Duke article after participating in a symposium on Lujan held at Duke University School of Law in January 1993. Scalia’s decision in Lujan denied environmental groups and some of their members the right to challenge an interpretation of the Endangered Species Act by the Fish & Wildlife Service. To Roberts, the issue in Lujan was checking government power, whether that power was held by the legislative or judicial branch. Only the Constitution, Roberts argued, dictated to courts the kinds of cases that could be brought, not acts of Congress. Otherwise, Roberts said, courts would be swamped with lawsuits and judicial power could supersede the other branches of government. Standing, Roberts wrote, is designed to implement the Framers’ concept of the “proper � and properly � limited role of the courts in a democratic society.” He wrote that “legislature is not supreme in our system of government � the Constitution is,” adding that while Congress was free, for example, to cut off funding for projects overseas that might harm the environment, the “one thing it may not do is ask the courts in effect to exercise such oversight responsibility at the behest of any John Q. Public who happens to be interested in the issues.” Thus, a rigorous standing doctrine, Roberts wrote, is “an apolitical limitation on judicial power. It restricts the right of conservative public interest groups to challenge liberal agency action or inaction, just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction. “Far from an assault on other branches,” he continued, “this is an insistence that they are supreme within their respective spheres, protected from intrusion however welcomed or invited � of the judiciary.” And in a rare moment, Roberts seems to mock the more-liberal critics of Lujan, citing a need for solid proof of a plaintiff’s injury instead of a claim steeped in “Hindu philosophy and Nietzsche.” Roberts wrote his law journal comment in response to a critique of Scalia’s opinion by Gene Nichol, now president of the College of William and Mary. Nichol, for one, didn’t seem to take it personally. Today he calls Roberts’ piece “thoughtful and well argued, certainly within the mainstream.” “Standing issues are important even though they seem hugely technical,” Nichol says. “They involve citizen access to the courts. Arguing for a constrained view of standing can lead to reduction in access to courts, and that’s probably the purpose.” Others, however, view Roberts’ point of view with less generosity. Cass Sunstein, a professor at the University of Chicago Law School and an authority on topics including standing and administrative law, says that Roberts’ beliefs about standing reflect a form of judicial activism. “The view that Congress lacks constitutional power to give citizens standing is historically very weak,” says Sunstein. “If he believes that, maybe he should be reading history a little more carefully.” Nichol says that while the Lujan decision was a notable one, it didn’t have the dramatic impact that was expected. “It signaled the possible retrenchment of congressionally based standing,” he says, adding that Scalia’s decision prompted concern that it would lead to a regime that would limit Congress’ ability to grant standing across a broad array of fronts. But the Supreme Court has not applied Lujan to cases in other areas. “The votes weren’t there to sustain that,” Nichol says. “ Lujan hasn’t developed as it might have been expected to.” If he reaches the high court, Roberts, conceivably, could alter that equation. STANDING TALL The Supreme Court began its effort to tighten standing doctrine and to turn standing into a set of constitutional requirements beginning around the early 1970s, says Maxwell Stearns, who teaches constitutional law at George Mason University School of Law and is presently a visiting professor at the University of Maryland School of Law. “Before that, it was never deemed a constitutional litmus test,” Stearns says. But the philosophy grew in popularity � both in the courts and among government lawyers � during the Reagan administration. Because Roberts was a lawyer for two Republican administrations in the 1980s, his professional coming of age was steeped in the influential ideas on litigation and constitutional interpretation popularized by then-Attorney General Edwin Meese III. (See “The Flower of the Reagan Revolution,” Page 10.) One tenet of Meese’s philosophy, eventually written up by the Department of Justice’s Office of Legal Policy in 1988, was that courts should grant standing sparingly and that it is not up to Congress to decide who is allowed to go to court to challenge a law or agency action. Stearns sees standing as a tool that can cut short challenges to administration actions. “At a time when the administration is on your side, closing ranks on who gets to enforce certain federal statutory obligations in federal court can be an attractive proposition,” he says. “But the problem with these sorts of changes in doctrine is that what goes around comes around.” John Manning, a professor at Harvard Law School who worked under Roberts in the solicitor general’s office during the first Bush administration, says controlling access to the courts is “the natural inclination of an administration defending its program. It’s a way of preventing the courts from replacing the discretionary decisions of the executive branch.” Still, Manning says that Roberts is “not the kind of guy who would rubber-stamp an executive decision.” As deputy solicitor general, Roberts vigorously defended agency interpretations of congressional statutes, he says. “If it was not infringing on universal rights, Roberts believed Congress had broad latitude.”
Lily Henning can be contacted at [email protected].

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