How much of an umpire is the chief justice?

DAVID G. SAVAGE covers the Supreme Court for The Times.

ONE YEAR AGO, John G. Roberts Jr., at the time President Bush’s nominee to be the chief justice of the United States, told senators that he aspired to be like an umpire, enforcing the rules of the game, not making them.

“My job is to call the balls and strikes, and not to pitch or bat,” he said. “It is a limited role.... Nobody ever went to a ballgame to see the umpire.”

Roberts suggested that modesty, humility and stability in the law were the goals of his umpire credo. Not to make law, like the activist judges he disdained, but merely to interpret existing laws fairly, mindful of legislative intent and the requirements of the Constitution. And during much of his first year, he did just that.

But in several cases, he behaved differently, joining Justice Antonin Scalia in dissents that would have rolled back a major environmental law and undercut states’ traditional authority over the practice of medicine. Neither would have qualified as a modest act.


On the eve of the court’s new term in October, the question that was hanging in the air during his confirmation hearing remains: Will the new chief justice seek the right result, or the right’s result?

In a surprising number of cases, Roberts brought together his liberal and conservative colleagues for unanimous decisions last term. In two important cases, he won the entire court’s agreement for rulings that upheld laws passed by state lawmakers or by Congress, an act consistent with his judge-as-umpire philosophy.

In Ayotte vs. Planned Parenthood, the New Hampshire Legislature had passed a law requiring doctors to notify parents of girls under 18 who were seeking an abortion. Doctors were to wait 48 hours before proceeding. The only exception was to save the life of the mother.

The American Civil Liberties Union and Planned Parenthood sued on behalf of several doctors, contending that the law was unconstitutional because it did not include a “health” exception. In the past, the high court had said states may not regulate abortion in a way that jeopardizes the health of women. A federal judge and the U.S. Court of Appeals struck down the entire law for that reason.

New Hampshire appealed, arguing that the law allowed girls to go before a judge and seek a waiver in special situations. The ACLU lawyers said that was insufficient. If a girl is facing a medical emergency, she should go to a hospital, not a court, they said.

Roberts led the way in fashioning a compromise. There is nothing wrong with the law in principle, he said. States can require doctors to inform parents before performing surgery on a minor. Parental-notice laws had been upheld. And most young girls seeking abortions do not face a health emergency.

But the chief justice also said the doctors could seek a court order that would make an exception for true medical emergencies. On this basis, the Supreme Court revived the state law but sent the case back to New Hampshire so a judge or lawmakers could craft a narrow exception for medical emergencies.

Roberts also spoke for a unanimous court in upholding a congressional law, known as the Solomon Amendment, in Rumsfeld vs. FAIR. Several law schools and professors, citing the free-speech clause of the Ist Amendment, had challenged the amendment, which required colleges and universities receiving federal funds to welcome military recruiters on the same basis as other employers.


But in two other high-profile cases, the chief justice seemed to do more than simply call balls and strikes.

In 1994 and again in 1997, Oregon’s voters approved the Death with Dignity Act, which allowed terminally ill people to obtain a dose of lethal medication from a doctor to hasten death. Two physicians had to certify that a person’s illness was incurable and that they had, at most, several months to live.

The Supreme Court in 1997 rejected the claim of a constitutional “right to die.” Justices unanimously said that “end-of-life” issues should be debated and decided by the states, not federal judges. That year, Oregon became the first and only state to authorize a limited but legal right to die.

In Washington, several conservatives in Congress, among them then-Missouri Sen. John Ashcroft, asked Atty. Gen. Janet Reno to intervene. They contended that the Oregon law violated federal drug laws because medications were being used to end a life. She refused, saying the Controlled Substances Act of 1970, which gives the federal government control over dangerous drugs and narcotics, did not take away the states’ traditional authority over the practice of medicine and the licensing of doctors.


But when Bush made Ashcroft his attorney general in 2001, Ashcroft issued an order saying that doctors in Oregon could lose their licenses to prescribe medication if they gave dying patients lethal drugs. Oregon’s governor, doctors and some patients sued, and a federal judge and the U.S. Court of Appeals blocked Ashcroft’s order.

The case of Gonzales vs. Oregon came before the Supreme Court in Roberts’ first month as chief justice, and a 6-3 majority ruled for Oregon in January. But Roberts joined Scalia’s dissent, as did Justice Clarence Thomas. The three said the use of legal drugs for ending a life was not a “legitimate medical purpose” and could be banned by the attorney general.

If Roberts’ side had been in the majority, it would have voided the voice of Oregon’s voters, taken away the state’s traditional power to regulate the practice of medicine and upheld a single federal officer’s new interpretation of a long-standing federal statute that had not been endorsed by Congress.

In the other case, Roberts supported a sharp pullback in the Clean Water Act of 1972, which makes it illegal to discharge pollutants into the “navigable waters of the United States” without a permit. Because water flows downhill, the Environmental Protection Agency since the 1970s has said it has authority over all rivers, streams, channels, marshes and wetlands that may send water -- and pollutants -- to major lakes, rivers and bays.


But in Rapanos vs. U.S., Roberts joined Scalia, Thomas and Samuel Alito in calling for a new, sharp limit on the EPA’s authority. Federal authority, they said, only applied to permanent and “continuous flowing” bodies of water, such as rivers and their main tributaries. This would have eliminated federal protection for most streams and wetlands in the interior of the nation and nearly all those in the West and Southwest because their stream beds are dry for part of the year.

For more than three decades, these federal regulations on wetlands and streams had stood, through Republican and Democratic administrations and through GOP- and Democratic-controlled Congresses. Yet, with one extra vote, the Roberts court would have rewritten the scope of the Clean Water Act in its first term -- not the act of a modest Supreme Court.

In this term, which opens Oct. 2, the court will take up at least two cases that will test Roberts’ umpire approach to judging. One involves the federal Partial-Birth Abortion Ban Act of 2003, which makes it a crime for doctors to remove a fetus largely intact during a second-trimester abortion. Six years ago, in a 5-4 ruling, the court struck down a nearly identical state law and ruled that there was “substantial medical authority” to say this method was sometimes the safest and best method of performing a legal abortion.

But Congress held hearings and said this procedure was “never medically indicated.” Most lawyers who follow the court expect the new law will be upheld on a 5-4 decision, thanks to the addition of Alito, who replaced retired Justice Sandra Day O’Connor. Such an outcome would, after all, uphold an act of Congress.


The most intriguing test may come in the area of school integration. Most conservatives, Roberts among them, say the government has no business treating people in a different way because of their race. But many school districts use racial guidelines to limit enrollment in some schools. This is the only way to maintain racial integration in cities where housing tends to be segregated, school officials say.

The justices agreed to hear challenges from white parents who say these guidelines amount to unconstitutional racial discrimination. If the high court agrees with them, it would be a big win for the principle of “colorblind” government, and it could change the rules for school systems across the nation. But it may not signal the dawn of a newly modest Supreme Court.