A Resume Strong on Business
Although much of the early sparring over Supreme Court nominee John G. Roberts Jr. has focused on how he might vote on abortion, his biggest impact could be on cases involving business, which he has represented frequently in his legal career.
While in private practice, Roberts represented numerous companies -- Chrysler Corp., Litton Systems, Toyota Motor Corp., WellPoint Health Networks and NBC -- as well as the U.S. Chamber of Commerce and trade associations for the mining and beer industries. He also represented states in antitrust litigation against Microsoft.
Roberts’ experience in business litigation would distinguish him from the rest of the justices. On the current court, only John Paul Stevens had a substantial practice representing major companies before becoming a judge.
Stevens was a prominent antitrust lawyer during the 1950s and 1960s. Roberts, by contrast, had a major private practice until two years ago, earning more than $1 million in 2001.
“He was the go-to lawyer for the business community. They are very comfortable with him,” said Thomas Goldstein, a Washington lawyer who signed a letter in 2002 supporting Roberts’ nomination to the U.S. Court of Appeals for the District of Columbia Circuit. “He definitely is a friend of the chamber. Of all the candidates, he is the one they knew best.”
The Chamber of Commerce is expected to formally endorse Roberts soon, and the board of the National Assn. of Manufacturers, which has indicated it will put resources into a confirmation fight if necessary, met on the issue Thursday.
“I think the business community should be -- and is -- very pleased with John’s nomination,” said Mark I. Levy, an appellate lawyer for Kilpatrick Stockton, a large Washington law firm. “What he would add to the court, and what the court has not had since Justice Lewis Powell retired in 1987, is someone with practical experience in business law issues.”
That practical experience is a big reason business groups are enthusiastic about the nomination, said C. Boyden Gray, who was the White House counsel during the administration of George H.W. Bush and has been one of Roberts’ chief advocates.
“Businesspeople are very enthused,” he said. “I think the reason is he understands business issues.... He has been immersed in them in private practice.”
A review of the cases Roberts handled while in private practice demonstrates his experience with business issues -- a record that troubles some liberal Democratic senators.
“Will he protect average Americans when their rights are abused by powerful corporations?” Sen. Edward M. Kennedy (D-Mass.) asked after the nomination. “Will he ensure that private companies aren’t allowed to pollute our rivers and lakes and air?”
Roberts has made clear part of the answer he will probably give to that line of questioning. When he was nominated to the U.S. Court of Appeals for the District of Columbia Circuit, he told senators it was wrong “to infer a lawyer’s personal views from the positions that lawyers may advocate on behalf of a client in litigation.”
The notion that a lawyer does not have to agree with a client’s position “has been a guiding principle of American law since before the founding, exemplified by Boston patriot John Adams’ vigorous defense of the British soldiers facing charges arising from the Boston Massacre,” Roberts said.
Roberts also said that his law practice had not “been ideological in any sense.” He said he had argued for and against affirmative action, environmental restrictions and antitrust enforcement.
One of Roberts’ cases that is drawing scrutiny is Toyota Motor Manufacturing vs. Williams, which the Supreme Court decided in 2002.
Roberts successfully argued that the Americans With Disabilities Act did not require Toyota to provide special accommodations for a female worker who suffered a carpal tunnel injury on the job. The ruling limited the scope of the disabilities law, potentially saving American companies huge amounts of money.
A federal appeals court had ruled that the carpal tunnel injury to Ella Williams was akin to having “damaged or deformed limbs.” Because of that, the appeals court said, the company was required to make reasonable accommodations for her.
But after listening to Roberts’ argument, the Supreme Court reversed that ruling unanimously. “Merely having an impairment does not make one disabled,” Justice Sandra Day O’Connor wrote in the court’s decision. To be disabled -- and protected by the disabilities law -- a person must be severely restricted in “activities that are of central importance of most people’s daily lives” such as “walking, seeing and hearing,” O’Connor wrote. Being unable to do a particular job does not mean a person is disabled, she ruled.
Roberts’ work in the case brought him praise from business groups but opposition from some advocates for the disabled. The National Coalition for Disability Rights immediately came out against Roberts’ nomination, prominently citing his work on the Toyota case.
Other noteworthy business cases that Roberts litigated:
* In 1998, Roberts successfully argued a major appeal for Chrysler Corp. in a case filed by the National Highway Traffic Safety Administration seeking the recall of about 91,000 Chrysler Cirrus and Dodge Stratus cars.
The agency contended that the cars’ seat-belt anchors did not comply with U.S. safety standards. A district judge granted the agency’s request and ordered a recall. Chrysler started recalling the cars but also challenged the ruling.
On appeal, Roberts argued that regulators had not provided auto companies with fair notice of the standards they had to meet. The federal court of appeals ruled 3 to 0 for Roberts’ position.
* In 2001, he represented the Associated General Contractors of America in two cases involving affirmative action.
In one case, the contractors group helped challenge federal requirements that favored minority-owned contracting companies in transportation programs. In the other, the contractors filed a friend-of-the-court brief in a case that successfully challenged minority preferences for defense contractors.
* In 2002, he convinced a federal appeals court that television stations should not be subject to federal rules aimed at preventing monopolies.
The ruling overturned Federal Communications Commission rules that barred media companies from owning cable systems and broadcast stations in the same market. In addition, the ruling ordered the agency to reconsider rules limiting television station owners from controlling more than 35% of the national market.
Some of Roberts’ opinions on the U.S. Court of Appeals for the District of Columbia Circuit are drawing attention.
In 2003, Roberts was one of two judges on the appeals court who wanted to reconsider a decision on the Endangered Species Act. Developers had urged the court to rehear the case, which began with an endangered toad in California.
Federal officials had required a developer, Rancho Viejo LLC, to remove a fence that interfered with the habitat of the arroyo toad. The developer argued that the federal government had no power to protect the animal because it existed in only one state. The Constitution gives the federal government the power to regulate interstate commerce.
A three-judge panel of the appeals court rejected the developers’ argument. The judges ruled unanimously that the regulation was valid because commercial real estate development was part of interstate commerce even if the toad was not.
When the developer asked the full court to reconsider the case, Roberts agreed, writing that the “approach to this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California, constitutes regulating ‘interstate commerce.’ ” A majority of the appeals court disagreed.
Roberts’ position has drawn criticism from the Alliance for Justice, which said Roberts’ opinion in Rancho Viejo vs. Norton “demonstrates that he is likely to stake out hard-line positions that severely limit the authority of the federal government to address national concerns.”
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Winning arguments
Some key cases argued by John G. Roberts Jr. while he was in private practice:
Toyota Motor Manufacturing vs. Williams
Argued: Nov. 7, 2001
Decided: Jan. 8, 2002
Roberts argued for Toyota that a worker, Ella Williams, was not so disabled that she was entitled to a work accommodation under the Americans With Disabilities Act. Williams had been fired from her assembly-line job after developing carpal tunnel syndrome as a result of performing her job. Toyota won the case, and a partial summary judgment against it was dismissed when the Supreme Court said a lower court had not applied the correct standards under the act’s definition of disability.
Adarand Constructors vs. Pena
Argued: Jan. 17, 1995
Decided: June 12, 1995
Roberts wrote an amicus brief in the case challenging an affirmative action program for Department of Transportation contractors. Then counsel for the Associated General Contractors of America, he said Congress’ findings did not justify the program. Adarand was the low bidder on a contract but was denied because of preference given to a minority business. Adarand sued; lower courts rejected the claim. The Supreme Court reversed the case, saying Adarand could claim injury.
Fox Television Stations Inc., NBC, CBS and Viacom vs. Federal Communications Commission
Argued: Sept. 7, 2001
Decided: Feb. 19, 2002
As a lawyer for NBC, Roberts argued successfully in the U.S. Court of Appeals for the District of Columbia Circuit that the company was not subject to government rules seeking to prevent monopolies, challenging ownership and cross-ownership statutes. The court held there wasn’t enough evidence to uphold government rules in the case because there was not enough evidence to show a potential Fox monopoly and an imprecise definition of “diversity.”
Bragg vs. West Virginia Coal Assn.
Argued: Dec. 7, 2000
Decided: April 24, 2001
Wrote an amicus brief in support of the National Mining Assn. when a group of West Virginians tried to bring suit in federal court to stop the state from issuing permits that allowed the “mountaintop removal” method of coal mining. The case was dismissed on grounds that the 11th Amendment gave states immunity in some circumstances.
Sources: Associated Press, Supreme Court, caselaw.lp.findlaw.com
Graphics reporting by Tom Reinken
