The Dallas Morning News

WASHINGTON – Supreme Court nominee John Roberts has a long track record as a litigator but a short resume as a judge. Short enough, in fact, to be summed up with a single word: toads.

Confirmed two years ago to the D.C. Circuit of the U.S. Court of Appeals, Roberts hasn’t had time to build a large body of opinions.

But the few he’s penned leave little doubt that he is as conservative as his former boss, Chief Justice William Rehnquist. He supports a strong presidency and strong police powers. He’s leery of federal regulations that bog down business. He writes and reasons clearly, with a bold sense of humor and a tempered literary style.

Here’s where the toads come in.

In his very first case on the D.C. circuit, a California land developer appealed an order by the U.S. Fish and Wildlife Service to remove a fence from a property to accommodate the movement of a rare group of California toads. When a three-judge panel rejected the appeal, the developer asked that the case be heard by the entire circuit court.

Roberts wanted to hear the case but was outvoted by his colleagues. He wrote a dissent, politely describing what he saw as wrong-headed reasoning.

The majority said the federal government could regulate the land developer because the developer was involved in interstate commerce. Roberts, however, said it was the toads that were being regulated.

“The hapless toad … for reasons of its own, lives its entire life in California,” wrote the court newcomer. He reasoned that toads who live only in California aren’t involved in interstate commerce, so the federal government had no authority to order the developer to remove his fence.

Business conservatives were ecstatic. In his first case involving an esoteric dispute, he had shown his conservative constitutionalist colors, and had done so with a spunk that made them positively giddy.

“He looked at this case and said: “This is a toad that has nothing to do with commerce. How is it that Congress can regulate this?”‘ said Roger Pilon of the Cato Institute, a libertarian conservative think tank. “That was a sign that he takes the Constitution seriously. And that he doesn’t see his role as just sitting there. He can be an active judge without being a judicial activist.”

In his two years on the D.C. Circuit, Roberts has published about 40 majority opinions and has not been reversed in any case. In only two of those cases did his colleagues file dissents. And in the 300 cases and orders he’s participated in, only twice did he dissent.

Glenn Lammi of the Washington Legal Foundation, a conservative business-oriented litigation group, said Roberts’ opinions are cautious in their wording and their analysis.

“He has an ability to look at things on a case-by-case basis, which is a very important thing to do,” said Lammi. He described Roberts’ ruling on the powers of federal agencies as “straight down the middle” – not unlike the justice he would replace, Sandra Day O’Connor.

His opinions regarding private rights and the powers of government, however, are sounding alarms among progressives, who are not as excited as their conservative counterparts about his views on commerce and the toads.

In an analysis issued by Alliance for Justice, the progressive group said that because so many federal regulations derive their power from the commerce clause, his narrow views on it “might threaten to undermine a wide swath of federal protections, including many environmental, civil rights, workplace and criminal laws.”

Tom Goldstein, who practices frequently before the Supreme Court, has studied Roberts’ opinions. Like Lammi, he said Roberts uses no particular tool to analyze cases. He reads the strict text of the law or legislative history or whatever tool is needed in a particular case.

What stands out, he said, is that he agrees with his colleagues far more often than not, and like them he gives a great deal of weight to the separation of powers and great deference to the president and the executive branch.

In one case, Roberts sided with the government, throwing out claims against Iraq brought by U.S. soldiers imprisoned during the first Gulf War. In a concurrence worded much more strongly than the majority’s, he said the Bush administration had the right to intervene to protect the new Iraqi government from claims against the regime of Saddam Hussein.

When an organization of Iranian dissidents challenged a State Department designation of their group as a terrorist organization, Roberts detailed evidence showing the group had been properly classified as a terrorist organization.

And just last week, he joined a majority that approved the use of military tribunals to try suspected al-Qaida terrorists imprisoned at Guantanamo Bay. The opinion, in effect, ruled that the 1949 Geneva Convention governing prisoners of war does not apply to al-Qaida and its members, supporting the Bush administration’s contention that hundreds of terror suspects at Guantanamo Bay can be held without the formal protections of prisoners of war.

“That was a very far-reaching case that’s likely to make its way to the Supreme Court,” said Goldstein. “But it was a very conservative panel (of judges) that got the case and they ruled unanimously. It’s not like he was doing something wild.”

In several cases involving the Fourth Amendment protections against unwarranted searches, Roberts ruled consistently in favor of the government. In one celebrated case, he threw out claims brought on behalf of a 12-year-old child arrested for eating french fries in a Washington’s subway station.

“No one is very happy about the events that led to this litigation,” he wrote, noting with satisfaction that “those responsible endured the sort of publicity reserved for adults who make young girls cry.”

Even when he agrees with the outcome of a case, he has challenged his colleagues when he feels their rulings extend beyond the particular facts in a case. He joined a unanimous majority in support of a drug manufacturer whose license had been suspended without sufficient explanation, but he wrote a separate opinion saying the majority opinion had violated “the cardinal rule of judicial restraint – if it is not necessary to decide more, it is necessary not to decide more.”

For Goldstein, however, the clarity and wit in his writing sets him apart from other judges.

“He’s a very clear and sometimes funny writer. Doesn’t leave things obscure,” said Goldstein. “He writes with a lot of clarity. You know what John Roberts is thinking.”