Roberts could swing high court toward greater executive power

National security cases are likely within next year

August 01, 2005|By Siobhan Gorman | Siobhan Gorman,SUN NATIONAL STAFF

WASHINGTON - As a Supreme Court justice, John G. Roberts Jr. would help define the limits of presidential power to conduct the war on terrorism. And he is more likely than the woman he seeks to replace to write those definitions broadly, legal scholars and former administration officials say.

Justice Sandra Day O'Connor played a pivotal role on social issues such as abortion and religion, which have dominated speculation about the direction the court will take once she is gone.

But she was also the swing vote on a divided court in cases that balanced the government's power to pursue its war on terrorism against the need to protect individual freedom.

"She was, in some ways, the crucial vote" in such cases, said John Yoo, a former Bush administration official. "The Justice O'Connor vote will still be important when the next cases come up."

Roberts' judicial record, after two years on the U.S. Court of Appeals for the District of Columbia Circuit, is not extensive. But he has had an opportunity to rule on one important case.

Ruling on tribunals

On July 15, he was part of a unanimous three-judge panel that ruled that foreigners detained at Guantanamo Bay, Cuba, could be tried in U.S. military tribunals, rather than in U.S. courts.

That decision, which Roberts joined but did not write, overturned a lower court's ruling that put the tribunals on hold, on grounds that they violated the Geneva Conventions.

The case, which involved a former driver for Osama bin Laden, will probably be the first terrorism case to reach the Supreme Court after O'Connor's departure, Yoo said. Salim Ahmed Hamdan, the first Guantanamo detainee slated to come before a post-Sept. 11 military tribunal, has challenged the tribunals' validity.

Roberts' ruling "reflects the long-standing judicial tradition of deferring to the elected branches of government in wartime," said Yoo, who, as a Justice Department official, advised the White House about how far the United States could go in its campaign.

Ruth Wedgwood, an international law professor at the Johns Hopkins University, cautioned against drawing any sweeping conclusions from one case. Roberts might simply want to wait and see how military tribunals play out before passing final judgment, she said.

But Timothy Edgar, national security policy counsel for the American Civil Liberties Union, said that replacing "O'Connor with Roberts is going to be the difference between a court ... that is willing to question some of the most broad assertions of government power with a court that's going to defer [to the president] and is probably going to defer with a 5-4 vote."

Edgar noted that Roberts, during his service in the Reagan administration, had argued as a young White House counsel that the president did not need congressional approval to invade Grenada.

During his 2003 confirmation hearing for his current position, Roberts was vague in saying how his judicial philosophy might apply to modern terrorism-related cases.

Asked how he would apply his preference for a literal interpretation of the Constitution to wiretaps, a focal point of post-Sept. 11 surveillance, Roberts acknowledged that with the issue of wiretaps "the text [of the Constitution] is only going to get you so far."

Analysts say that because national security law carries few precedents, Roberts would be in a position to shift the court's delicate balance.

"They're the most singularly important set of issues that the country faces," said Paul Rosenzweig, a legal analyst with the conservative Heritage Foundation.

Among the issues that are likely to reach the court in coming years: under what circumstances citizens and noncitizens can be jailed without charges; whether U.S. soil is considered a battlefield in fighting terrorism; the lengths to which government can go to operate in secrecy; and the degree to which it is free to spy on its citizens.

These questions might lack the headline-grabbing immediacy of an issue such as abortion, but over time, they "set the mark on fundamental American values," Rosenzweig said.

No `ideological blinders'

Roberts would be an important voice on national security because, like O'Connor, he tends to evaluate cases individually, Yoo said. "He doesn't come to these issues with ideological blinders on," said Yoo, a law professor at the University of California, Berkeley.

At the same time, he said, Roberts might be less likely to rule against the executive branch than O'Connor, whom he described as evaluating each case "maybe a little too much."

Historically, the Supreme Court has shied away from national security issues. It declared President Abraham Lincoln's suspension of habeas corpus unconstitutional only after the Civil War was over. In World War II, it permitted the internment of Japanese-Americans and questioned the internment camps only after the war.

Yet last year, the justices chose to take up three cases in the midst of U.S. military operations in Iraq and Afghanistan and a campaign against Islamist extremism.

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