Blog Roundup: Supreme Court Nominee John Roberts

Everyone and their first cousin is now commenting on U.S. Supreme Court nominee John Roberts, and the ink being spilled (or should I say the pixels being generated) is likely to be plentiful for a while. Rather than generating even more commentary, I’m going to bring you what others are saying about John Roberts, especially as it relates to employment issues. There will be plenty of time for careful and thorough analysis, and most certainly the the employee rights advocates at the National Employment Lawyers Association (NELA) will be a part of that. But for now, there’s some reasonably insightful commentary out there already, and this will save you from getting out your hip-waders.

NELA’s President Janet Hill had this to say, upon release of the nomination:

NELA is reviewing Judge Roberts’ record, and we expect the Senate to fulfill its constitutional duty to conduct a thorough and independent review of his qualifications, background, and constitutional philosophy. There is no need to rush to a decision on a nominee. Justice Sandra Day O’Connor has said her resignation will be effective upon the confirmation of her replacement. There is time for the confirmation process to take its course and to guarantee that the next Justice will protect the rights and freedoms of every American.

(Press Release, July 20, 2005)

NELA is also urging that Roberts’ confirmation process demonstrate that he has:

· A record of commitment to the progress made on civil rights, women’s rights and individual liberties;
· Manifested a respect for the constitutional role Congress plays in protecting these rights and in ensuring recourse when these rights are breached;
· Demonstrated a commitment to enforcement of Congressional intent with respect to the laws protecting employees’ rights, and does not place the interest of employers over the rights of employees;
· An open mind to decision-making with an understanding of the real-world consequences of his decisions; and
· An allegiance to the fundamental principle of an independent judiciary.

(Press Release, July 20, 2005)

Now that the nomination has been announced, many bloggers are rushing to share their two cents, and then some, about Roberts. We, of course, take a special interest in how Justice Roberts, should he assume that title, is likely to rule on cases affecting workers. Here’s what some had to say about that specifically:

Jordan Barab — Confined Space:

Desperate to divert media attention away from consiglieri Rove, President Bushed rushed out his Supreme Court nomination tonight: John Roberts. The general consensus seem to be that although Roberts is (very) conservative, he’s not a right-wing wack-job, so he’s probably a shoe-in. And although the right wing blogosphere is delighted, even some lefties think it could have been much worse. On the other hand, it’s still early. There could be an illegal alien in the closet. Maybe he drank a beer before the age of 21 or made an illegal right turn. But, of course, the question on all Confined Space readers’ minds today is: “How is John Roberts on workplace safety and labor issues?” The answer is probably not great.

(John Roberts)

Donald Castor — All Deliberate Speed

As a Judge: So those are all the opinions (of which I am aware) that Judge Roberts has authored that touch on employment law. There’s nothing that jumps out as wrong or unfair. But while this is a very small sample size (eight opinions), it is somewhat disconcerting that Judge Roberts has never authored an opinion that rules in favor of a labor union or employee. Hopefully he’ll quickly learn how to do so as an associate justice.

As a Litigator:
Overall, Judge Roberts’s record should be cause for concern for those who make their living representing employees. As a judge, he has consistently ruled against employees. As a litigator in private practice, he consistently represented employers. If Judge Roberts position were this one-sided on abortion, he would likely be filibustered. But since employment law doesn’t quite grab headlines in the same way, this particular part of his record will likely get little attention from the press.

(Judge Roberts’ Record on Employment Law) (See also, Roberts by the Numbers and A Little Clarification About Roberts)

Nathan Newman:

[H]ere’s the best case scenario on Roberts. There is still a reasonable possibility that Roberts has just kept his mouth mostly shut for three decades and will emerge as a raving ideologue to the Right of Clarence Thomas. But then, there is some chance that he was mostly an ambitious guy who hitched himself opportunistically to the Right in the Reagan era and could surprise his supporters once he is on the bench.

But the most likely possibility is that he won’t be surprising and here’s my bet on how he will perform from the evidence. In general, he will be less of a judicial activist than O’Connor in both bad ways but also potentially good ways.

(Evaluating Roberts: Sympathy for the Devil)

Michael Fox: Jottings by an Employer’s Lawyer

[Roberts] represented Toyota in Toyota Motor Manufacturing Inc. v. Williams, one of the major cases viewed as being a limiting decision interpreting the Americans with Disabilities Act. And for those Senators (e.g. Senator Leahy D-Vt) who have been so liberal in their praise of retiring Justice O’Connor, it will be interesting to see how they can bash Judge Roberts for being an advocate in that case, decided unaminously by the Supreme Court and authored by none other than Justice O’Connor.
(Now Let the Feeding Begin)

[See also A First Look at Judge John Roberts on Labor and Employment Law Issues, More on Judge John Roberts’ Decisions in Labor and Employment Cases , and A More Complete List of Judge John Roberts’ Labor and Employment Related Decisions, for a flavor of the management-side perspective on Roberts’ employment decisions.]

Other good resources:

Goldstein and Howe’s The Supreme Court Nomination Blog
NELA’s John Roberts page: Confirming Justice: Roberts Nomination
Moving Ideas: Supreme Court Guide for Activists

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.