Don't Fence Me In

Judge John Roberts looks certain to glide toward his confirmation as the successor to Sandra Day O'Connor on the U.S. Supreme Court. He has strong conservative credentials: Is he, as I suspect, the first member of the Federalist Society to be named to the high court?

There seems to be little substance to cause objections to President Bush's choice of Roberts. From what I have been able to gather, Roberts has a jurisprudential temperament closer to that of Antonin Scalia -- considering himself mostly bound by precedent -- than to that of Clarence Thomas -- what might be termed "originalist," or having a willingness to overturn precedent in order to return to the meaning the drafters of the Constitution intended. Thomas has a healthy skepticism of expanding government power that builds upon incremental judicial decisionmaking. Roberts, like Scalia, appears to be too much of an incrementalist and too deferential to the legislature for my tastes.

Still, I found something worrisome in the Outlook section of Sunday's Washington Post. Douglas T. Kendall, identified as "founder and executive director of Community Rights Counsel, a nonprofit, public-interest law firm in Washington," writes on the op-ed page:

In contrast to Judge Janice Rogers Brown of the D.C. Circuit, who made a name for herself by delivering bombastic speeches that thrill the libertarian right, Roberts made his reputation largely on his undisputed skills as a litigator representing clients in cases before appellate courts and the Supreme Court.

I have particular knowledge about one of these cases, having worked on it. In 2002, the property rights movement was at its zenith; developers had won a string of Supreme Court victories that undercut environmental and land-use laws across the country. That year, the court agreed to hear a challenge to a carefully crafted consensus plan to save Lake Tahoe from the damaging effects of overdevelopment. Facing the prospect of a devastating defeat, the Tahoe Regional Planning Agency did a very smart thing: It hired the best conservative Supreme Court advocate it could find. That advocate was Roberts, and he wrote the best legal brief I've ever read in a takings case. His argument in front of the court aimed at and won the court's two swing votes, O'Connor and Justice Anthony Kennedy, resulting in a surprising and broad Supreme Court victory that stopped the takings movement in its tracks.

Coming on the heels of Justice O'Connor's passionate dissent in the last term's Kelo v. City of New London, in which the Court's majority said that federal, state, and local governments have virtually unlimited authority to transfer property from one owner to another, the idea that her successor may hold views on the Fifth Amendment more in keeping with those of environmentalists than those of property-rights advocates is disturbing.

To be sure, Kendall says that Roberts wrote a brilliant brief on behalf of his client, and an excellent advocate will be able to argue either side of an issue regardless of his personal views. But Kendall's endorsement should give us pause.