Many of the issues and concepts may be familiar, but others may be less so or may be obscured by unfamiliar terminology - shorthand references to cases, statutes and legal doctrine. Some questions at the hearings, which start Monday, may focus on the administrative role of the chief justice, now that Judge John G. Roberts Jr. has been nominated to that post. And Senate Judiciary Committee Chairman Arlen Specter has already signaled his intention to question Judge Roberts on whether he believes he can unify the court by producing fewer 5-4 decisions, which, the senator has said, often leave the country confused about the state of the law.
Based on questions that members of the committee have said they intend to ask Judge Roberts and issues that various interest groups have raised, here is a viewer's guide, by topic and in context, to the words and phrases that are likely to be heard as the event, part legal seminar and part political theater, proceeds.
Judge Roberts is likely to be asked whether he regards the Constitution as protecting unenumerated rights - rights that the Constitution's text does not explicitly identify. The most relevant of these is the right to privacy, which the Supreme Court first applied in this context to invalidate Connecticut's law against birth control, in a 1965 decision, Griswold v. Connecticut. As a young lawyer in the Reagan administration, Judge Roberts referred to the "so-called right to privacy." He may be asked for his views on the Griswold case as a proxy for his views on the 1973 abortion decision, Roe v. Wade, which he may be reluctant to discuss in any detail.
The court reaffirmed the right to abortion in a 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey. This case may well come up as part of a discussion of stare decisis, a Latin phrase that means "to stand by the thing decided" and refers to the judicial doctrine of abiding by precedent. A 5-to-4 majority invoked stare decisis in the Casey decision. In 2003, at his confirmation hearing to become a federal court of appeals judge, Judge Roberts referred to the Casey decision as evidence that Roe v. Wade, having been "reaffirmed in the face of a challenge," was now "a little more than settled."
Two other Supreme Court cases likely to come up at the hearing are Rust v. Sullivan and Bray v. Alexandria Women's Health Clinic. The Rust case, from 1991, challenged a policy adopted by the first Bush administration to forbid family planning clinics that received federal money from providing patients with any information about abortion. The court upheld the regulation. The right to abortion itself was not at issue in the case. Mr. Roberts, then the principal deputy solicitor general, signed the administration's brief, which declared, "We continue to believe that Roe was wrongly decided and should be overruled."
In the Bray case, from 1993, the question was whether a post-Civil War statute known as the Ku Klux Klan Act should be interpreted to give federal courts jurisdiction to protect abortion clinics from blockades by anti-abortion demonstrators. Mr. Roberts, as deputy solicitor general, argued for the Bush administration that the statute did not apply to the clinic situation, and the court agreed. Last month, Naral Pro-Choice America, an abortion-rights group, ran a television advertisement based on Mr. Roberts's participation in the Bray case, describing him as someone "whose ideology leads him to excuse violence against other Americans." In the face of criticism that the advertisement was misleading and unfair, the organization quickly dropped it.
Sex Discrimination
As a Reagan administration lawyer, Mr. Roberts wrote several memorandums critical of the theory of comparable worth, an approach to remedying sex discrimination in the workplace that had attracted the attention of some women's rights groups and lower-court judges. He described comparable worth as "a radical redistributive concept" in one memorandum from 1984.
While comparable worth had a relatively brief half-life, another sex discrimination controversy engaged the federal courts and Congress for years in the 1980's. The debate was over the scope of Title IX of the Education Amendments of 1972, a federal law that prohibits sex discrimination in schools and colleges that receive federal money. Was an entire institution covered by the nondiscrimination obligation if even a single program received federal money, or was Title IX program-specific, requiring only programs that received the federal money to comply with Title IX? Mr. Roberts argued within the Reagan administration for the narrower reading, which the Supreme Court adopted in a 1984 decision, Grove City College v. Bell. Over President Reagan's veto, Congress then enacted the Civil Rights Restoration Act of 1988, which overturned the court's interpretation and gave the law the broader meaning.
Civil Rights
Mr. Roberts's early service in the Reagan administration, in 1981 and 1982, coincided with a major dispute over the scope of the Voting Rights Act of 1965. Congress was considering changes to the law, both because temporary portions of it were expiring and because the Supreme Court, in a 1980 case, City of Mobile v. Bolden, had required proof of intentional discrimination in order to make out a violation of the law's most important permanent provision. The civil rights community was pressing for an amendment to the act to make clear that proof of a discriminatory effect was enough to win a voting rights case.
Judge Roberts argued within the administration against the amendment, on the ground that it would "establish a quota system for electoral politics, a notion we believe is fundamentally inconsistent with democratic principles," as he put it in a memorandum for Attorney General William French Smith. But sentiment in Congress was otherwise, and the amendment was adopted.
Access to Court
Judge Roberts may be asked about his view of the scope of Section 1983. This Reconstruction-era federal law does not itself convey substantive rights, but rather provides the federal courts with jurisdiction to hear private complaints that officials have violated rights guaranteed by constitutional provisions or by other federal statutes. Disputes over which rights are enforceable through Section 1983 frequently come before the Supreme Court, and the cases are often quite contentious.
On a related issue, Judge Roberts may be asked about the validity of citizen-suit provisions that Congress has included in various environmental laws, permitting individuals to act as private attorneys general and go into federal court to seek to have the laws enforced. Recent Supreme Court decisions have interpreted these provisions narrowly, and in an article he wrote for The Duke Law Journal in 1993, Mr. Roberts indicated that he agreed with this trend.
One hot debate from the early 1980's that has never completely died is over court-stripping, the removal by Congress of the Supreme Court's jurisdiction to hear appeals on busing, school prayer and other types of cases. Mr. Roberts argued within the Reagan administration that while Congress did have the power to limit the court's jurisdiction, it would be "bad policy" to do so.
Commerce Clause
No one thought to question recent Supreme Court nominees about Congress's authority to regulate interstate commerce because it had been decades since the court had treated this authority as an open question. But since the last vacancy in 1994, the court has given a narrow interpretation to Congressional authority under the Commerce Clause in a series of decisions limiting the ability of Congress to make federal law binding on the states or, in some instances, to legislate on a subject at all.
Mr. Specter wrote a letter to Judge Roberts last month saying that he intends to question the nominee about these decisions, noting that members of Congress "are irate about the court's denigrating and, really, disrespectful statements about Congress's competence." He told the nominee to expect questions on United States v. Lopez, a 1995 decision that overturned a federal law called the Gun-Free School Zones Act on the ground that the prohibited activity - carrying a gun near a school - was not sufficiently connected to interstate commerce, and on United States v. Morrison, a decision from 2000 that invalidated a portion of the Violence Against Women Act on the same basis.
In a follow-up letter, Mr. Specter added two more cases to the list, both concerning the Americans With Disabilities Act. In a 2001 case, Board of Trustees v. Garrett, the court ruled that the states were immune under the 11th Amendment from suits by their employees for failure to make the accommodations required by the disabilities law. The court said that despite the years of hearings that preceded enactment of the law in 1990, Congress had not made the findings necessary to breach the states' constitutional immunity.
But in 2004, in Tennessee v. Lane, Justice Sandra Day O'Connor switched sides and provided a fifth vote to open the states to suit under a different provision of the disabilities law for failing to provide accessible courtrooms. Side by side, Mr. Specter said, these decisions showed the court "functioning as a super-legislature" and demonstrated a "lack of stability or predictability in the law."
There is no doubt that Judge Roberts is intimately familiar with the Commerce Clause debate. Soon after joining the federal appeals court here in 2003, he voted to rehear Rancho Viejo v. Norton, a case that a three-judge panel had decided under the Endangered Species Act. The question was whether the government had the constitutional power to enforce the law in order to protect the arroyo southwestern toad, an endangered species that lives only in California and does not cross state lines. The panel had upheld application of the law on the ground that even if the toad itself did not affect interstate commerce, the housing project that would encroach on the toad's territory would have such an impact.
In his unsuccessful opinion urging reconsideration, Judge Roberts referred to the hapless toad and said the decision "seems inconsistent" with the Supreme Court's approach in the Lopez and Morrison cases. His four-paragraph opinion did not suggest that the Endangered Species Act as a whole is unconstitutional, but rather that the appeals court should "consider alternative grounds for sustaining application of the act that may be more consistent with Supreme Court precedent."
Presidential Power
Senator Patrick J. Leahy of Vermont, the Judiciary Committee's senior Democrat, has said that he intends to ask Judge Roberts about the circumstances under which a president can "be considered to be above the law." For reference, the senator gave the nominee a copy of the Bybee memorandum, written in 2002 by an assistant attorney general, Jay S. Bybee, who is now a federal judge. The once-secret memorandum, which the Bush administration has since disavowed, provided a narrow definition of torture and argued that in deciding how to treat detainees, the president in his role as commander in chief is bound neither by domestic law nor by international treaties on torture.
Judge Roberts is also certain to be asked about Hamdan v. Rumsfeld, a case he participated in on the appeals court. The ruling, handed down on July 15, turned back a challenge to the military commissions that the Bush administration intends to use to try several of those being held as enemy combatants at the Guantánamo Bay naval base. Lawyers for Salim Ahmed Hamdan, described as a bodyguard and driver for Osama bin Laden when he was captured in Afghanistan in 2001, have appealed the case to the Supreme Court. But if Judge Roberts is confirmed to the court, he will be recused from the case.