Bringing Business to the Bench
By Lorraine Woellert
As an attorney with the Washington firm of Hogan & Hartson LLP, John G. Roberts Jr. would often join former Senator J. William Fulbright, now deceased, and other regulars around a cafeteria lunch table. The so-called Fulbright Table was a tradition at the firm, a forum for lively give-and-take that included lawyers of all political stripes. "They would have great political debates, then part as friends," recalls David Leitch, general counsel at Ford Motor (F ) and a Hogan alum. "I don't think John has made any enemies in his two decades in Washington, which is really something."
No enemies? Now comes the true test. As President George W. Bush's first nominee for the Supreme Court, Roberts -- now a judge on the nation's No. 2 bench, the U.S. Court of Appeals for the District of Columbia Circuit -- is already under intense scrutiny. Activists from the left and right are poring over Roberts' opinions, his arguments in court, and his list of former clients for clues as to what type of judge he might be.
One group that's certain to be pleased: Big Business. During his 13 years with Hogan, Roberts worked for a range of corporate clients -- from Chrysler and Toyota (TM ) to a tiny California signmaker, TrafFix Devices -- on patent, environmental, employment, discrimination, and antitrust cases. If Roberts is confirmed -- as expected -- he'll be the first justice with deep experience in the issues that govern business in America since Lewis F. Powell Jr. retired in 1987. Roberts' legal peers say he truly understands business.
"The justices who have this kind of background are few and far between," says Mark Levy, an appellate lawyer at Kilpatrick Stockton LLP and a Democrat. "John brings firsthand personal experience and will understand [companies'] legitimate concerns and practical problems. He broadens the experience base of the court."
That experience could help determine the range of cases the court takes on. Today's Supremes tend to shy away from business issues unless they're confronted with clear conflicts among courts of appeals in the 11 circuits. That frustrates business, which often finds itself bound by default by a bad ruling in a single circuit. "If the Ninth Circuit comes up with a questionable rule, it's hard to tell business to comply only" in the West, says Levy. "John will be able to shed light why these business concerns are legitimate and important" for the court to consider.
That's not the only reason executives are celebrating Bush's choice. Even before Roberts enters the chambers on Capitol Hill, his nomination is changing the mood in Washington. Corporate lobbyists who feared a bloodbath over a strongly ideological nominee now hope Congress will quickly clear Roberts' confirmation and move on to other issues, including energy, terrorism insurance, and pension reform.
In particular, the Senate Judiciary Committee -- first stop for any court appointment -- could soon be free to deal with data security and asbestos reform, "where committee members' expertise and time will be needed," says Kim Wallace, managing director for Lehman Brothers (LEH ) Washington Research.
Supporters maintain that Roberts will be a fair-minded, conservative jurist who, as Bush says, won't legislate from the bench. He is hailed widely as a brilliant litigator, an affable fellow who thinks on his feet, and a skilled orator. "To this day, when I'm preparing for an oral argument, I'll pull transcripts of John Roberts' oral arguments," says Jay Sekulow, chief counsel for the conservative American Center for Law & Justice, who has argued a dozen cases alongside Roberts.
FOES LINING UP.
At 50, Roberts knows his way around the Supreme Court: He clerked for then-Associate Justice William Rehnquist during the 1980-81 term and has since argued 39 cases before the court. In 2003, he won a seat on the D.C. Circuit by a unanimous voice vote in the Senate. He quickly earned a reputation as a team player on a court where 97% of opinions are unanimous. By Lorraine Woellert This time the road to the robe will be rockier. The liberal People for the American Way has labeled Roberts' record on environmental and civil rights "disturbing." NARAL Pro-Choice America calls the practicing Catholic hostile to abortion rights. Civil liberties groups are zeroing in on his opinion -- written for a unanimous panel of the D.C. Circuit -- upholding the arrest and short incarceration of a 12-year-old girl caught eating a french fry on Washington's subway system.
Roberts' stint as a registered lobbyist -- representing the Cosmetic, Toiletry, & Fragrance Assn. before the Food & Drug Administration on commercial free-speech issues -- will also raise eyebrows among critics of Washington's pay-to-play culture.
Given Roberts' limited writings from the bench, Democrats will press hard to examine his work for the Justice Dept. under President George H.W. Bush. But in a high-stakes fight, opponents can't overplay their hand, and Roberts' record gives them few strong cards -- and that includes abortion, on which he has written very little.
That also leaves Bush with little red meat for the Right. Some supporters are troubled by Roberts' thin record on abortion and other social issues, fearing that, like Justices Sandra Day O'Connor and David Souter, Roberts will be more liberal than the President who picked him. But social conservatives are rallying behind Roberts, relying on White House assurances that his strict reading of the Constitution and penchant for moving political problems out of the courts and into legislatures will eventually help overturn Roe v. Wade.
The same lack of a paper trail makes it hard to tell how Roberts would rule in business cases. The D.C. Circuit rarely hears disputes involving punitive damages, federal preemption of state laws, or other issues dear to big companies. And despite press reports, Roberts does not belong to the Federalist Society, a conservative group that advocates for states' rights.
Nor is he a knee-jerk advocate of states'-rights boosters. That's good for big business, which prefers the consistency of a single federal standard over a 50-state patchwork of regs. In 2002, the Chamber of Commerce enlisted Roberts to write a Supreme Court brief in a boating-safety dispute from Illinois. Roberts argued that federal regulations -- which don't require propeller guards on boats -- should trump state tort law for the sake of uniformity and called concerns about state sovereignty "overwrought."
In his private practice, Roberts has argued dozens of cases on behalf of businesses big and small. "The reason he'll be a good judge is not because he's probusiness, it's because he's a brilliant lawyer," says Richard Garnett, a professor of law at University of Notre Dame.
In 2002, Roberts won a unanimous Supreme Court decision on behalf of Toyota that curbed lawsuits by workers with repetitive-motion injuries. In an opinion penned by O'Connor, the court agreed that workers suing under the federal Americans With Disabilities Act must struggle with daily tasks such as brushing their teeth, not just an inability to perform their jobs. In 2001, Roberts battled Intel (INTC ) in an antitrust lawsuit over technology developed by Intergraph (INGR ), a software company based in Huntsville, Ala. The chip giant agreed to pay Intergraph more than $500 million. David Vance Lucas, Intergraph vice-president and general counsel, says Roberts merged patent and antitrust law into a powerful case. "John's legal acumen was absolutely critical," Lucas says.
LOOKING FOR SIGNALS.
Roberts has been on the other side, too. Representing several states, he joined the feds' legal team opposing Microsoft's (MSFT ) appeal of a district antitrust ruling. Microsoft persuaded the D.C. Circuit in 2001 to toss out that decision. And his advocacy of government power could make executives and conservatives queasy.
The Supreme Court recently stirred controversy by deciding, in Kelo v. New London, that cities could seize land for private development. The ruling cited a 1992 case in which Roberts persuaded the high court that Amtrak could condemn land, then turn it over to private railroads. Roberts argued the court had "wide latitude" to authorize property transfers between private owners "to accomplish a permissible public objective."
Once again, Roberts was arguing his client's brief. For most of his career, he has been a hired gun, making the best of facts and the law to suit the needs of the client of the moment. That -- and the fact that most appeals cases turn on procedural technicalities -- makes it almost impossible to divine Roberts' own philosophy. The only consistent elements in Roberts' record are his quick mind, his reputation for fairness, and the fact that he has repeatedly tackled and mastered complex business issues. But for big companies -- long accustomed to the high court's neglect -- that's enough. With Eamon Javers in Washington, Brian Grow in Atlanta, and Mike France and Susann Rutledge in New York
Woellert is a correspondent in BusinessWeek's Washington bureau