Alliance for Justice Opposition Report.....John G Roberts.........

Environment

First, as Acting Solicitor General, Roberts was the government’s lead counsel before the Supreme Court in Lujan v. National Wildlife Federation, a case brought by citizens seeking to enforce environmental protections in response to the government’s decision to
open 4,500 acres of public land to mining activity. Plaintiffs asserted that they would be injured by the government’s decision to open the land to mining, citing recreational activities in which they had engaged and planned to engage in the future in that area.

Despite express statutory authorization for such suits, however, Roberts argued that plaintiffs, members of the National Wildlife Federation, had no right to file the claims, because they had not presented sufficient proof of the impact of the government’s actions on them to give them standing. He asserted that the D.C. Circuit, which had granted standing, had “presum facts that the parties did not -- and perhaps cannot -- allege on their own.” The Supreme Court agreed with Roberts, tightening standing requirements for federal cases in one of a line of cases making it harder for plaintiffs to challenge governmental actions detrimental to the environment.

Choice

In two cases, Roberts took positions hostile to women’s reproductive rights. He was a co-author of the government’s brief in Rust v. Sullivan, the case in which the Supreme Court upheld newly revised Title X regulations that prohibited U.S. family planning
programs receiving federal aid from giving any abortion-related counseling or other services. The provision barred such clinics not only from providing abortions, but also from “counseling clients about abortion” or even “referring them to facilities that provide
abortions.” Roberts’ brief argued that the regulation gagging the government-financed programs was necessary to fulfill Congress’ intent not to fund abortions through these programs, despite the fact that several members of Congress, including sponsors of the amendment dealing with abortion, disavowed this position and that the Department of Health and Human Services’ had not previously interpreted the provision in such a rigid and restrictive manner.

Moreover, Roberts argued, even though the case did not implicate Roe v. Wade, that “<w>e continue to believe that Roe was wrongly decided and should be overruled… The Court’s conclusion in Roe that there is a fundamental right to an abortion… finds no support in the text, structure, or history of the Constitution.”

In a second abortion-related case, Roberts co-authored the government’s amicus brief in a private suit brought against Operation Rescue by an abortion clinic it had targeted. The brief argued that Operation Rescue was not engaged in a conspiracy to deprive women of equal protection. Roberts took this position in spite of Operation Rescue’s admission that its goal was to prevent women from obtaining abortions and to shut down the clinic during its protests. Although the government’s brief acknowledged that only women could become pregnant, it argued that conspiring to prevent people from seeking constitutionally-protected abortions did not constitute gender discrimination. It asserted that, at worst, Operation Rescue was discriminating against pregnant people, not women.

The brief in Bray also took the additional step of pointing out that the Supreme Court had not previously decided whether women were protected from private conspiracies to violate their equal protection rights, under the relevant civil rights statute,and urged the
Court not to reach a decision on this question, rather than arguing that the Court should definitively state that women should be afforded protection by the statute, as was within the Court’s power in this case.

The Supreme Court accepted Roberts’ argument in a 5-1-3 decision, with Justices O’Connor, Stevens, and Blackmun dissenting. However, Justice Souter, who concurred in part with the Court’s holding, disdainfully rejected Roberts’ arguments, writing that:

It is also obvious that petitioners' conduct was motivated "at least in part" by the invidious belief that individual women are not capable of deciding whether to terminate a pregnancy, or that they should not be allowed to act on such a decision. Petitioners' blanket refusal to allow any women access to an abortion clinic overrides the individual class member's choice, no matter whether she is the victim of rape or incest, whether the abortion may be necessary to save her life, or even whether she is merely seeking advice or information about her options. Petitioners' conduct is designed to deny every woman the opportunity to exercise a constitutional right that only women possess. Petitioners' conspiracy, which combines massive defiance of the law with violent obstruction of the constitutional rights of their fellow citizens, represents a paradigm of the kind of conduct that the statute was intended to cover.