Roberts deferential to other branches

Supreme Court nominee John G. Roberts Jr. consistently deferred to the legislative and executive branches in his two years on the nation’s second-most powerful federal court.

Judge Roberts was sworn in to the U.S. Circuit Court of Appeals for the District of Columbia in 2003 and has been involved in nearly 200 decisions. Almost all of those were unanimous findings by a three-judge panel. But when the judges split, Judge Roberts sided with the court’s conservatives only slightly more often than with its liberals.

And a review of his 48 written opinions by The Washington Times shows a judge who gives the executive branch wide latitude, as long as officials don’t act capriciously, and one who takes seriously the directions given to judges by Congress.

In one stark instance, he wrote a sharp critique of a district court judge who refused to follow federal sentencing guidelines, chastising him for his “apparent election to sentence according to his own lights.”

Judge Roberts, in an opinion joined by libertarian-leaning Chief Judge Douglas H. Ginsburg and liberal-leaning Harry T. Edwards, wrote that the judge’s sentence had to be overturned “so that we may be certain [the defendant] is sentenced under the guidelines and in accordance with the rule of law we are all duty-bound to uphold.”

During his time on the court, Judge Roberts has been involved in some high-profile decisions.

He was part of the unanimous nine-judge panel that ruled the Bush administration did not have to release internal documents concerning Vice President Dick Cheney’s energy task force.

Judge Roberts also wrote the unanimous decision that held that however bad the policy, Metro had the authority to arrest a 12-year-old girl who was eating french fries on the subway, noting: “It is not our place to second-guess such legislative judgments.”

He also was part of a unanimous three-judge panel that ruled against an attempt to move the case of a detainee accused of being Osama bin Laden’s driver — captured on the battlefield in Afghanistan — from a military tribunal to federal court.

The decision strongly defended the Bush administration’s position that enemy combatants are not entitled to the protections and procedures of the Geneva Conventions.

Court watchers said Judge Roberts has proven to be solidly conservative, but does not seem to have an agenda.

“He’s a conservative. He’s not an extreme ideological conservative,” said Thomas Goldstein, founder of Goldstein & Howe, a District-based law firm that specializes in Supreme Court cases. “He’s what I would call a federal-power conservative. I don’t think he’s a states-rights conservative, and I don’t think he’s an anti-government conservative. And this may reflect his time in the executive branch.”

Mr. Goldstein’s firm runs a Web log, www.sctnomination.com, that reviewed 191 decisions Judge Roberts voted in. Their review found that very few cases were split decisions, and in those that were, Judge Roberts was almost as likely to side with liberals against a conservative colleague as he was to side with conservatives against a liberal colleague.

Although Judge Roberts agreed 100 percent of the time with conservative Senior Judge Laurence H. Silberman and 99 percent of the time with Judge Ginsburg, he also agreed 95 percent of the time with Judge Merrick B. Garland and another liberal-leaning judge, Judith W. Rogers.

That was more than the 90 percent of the time he agreed with senior Judge Stephen F. Williams, a conservative Reagan appointee, and the 92 percent he sided with David B. Sentelle, possibly the court’s most conservative member.

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