Lawyers Journal

“Shaping the Future,” a look at U.S. chief justices: Part III

This is the third of a three-part series discussing the contributions of the chief justices to this nation, summarizing their impact on the court and American history. As we look to learn from the “Shaping the Future of the Legal Profession” Annual Conference in March, some context for the rich history of the Supreme Court will provide a further appreciation of the past.

Since the establishment of the Supreme Court, 17 individuals have served as chief justice. All have contributed to the development of this nation and its laws.

In the early 1800s, the court’s decisions elevated it to a status more equal to the legislative and executive branches. At the turn of the 20th century, the court vigorously acted to curb executive and legislative authority. During the 1950s and 1960s, the court expanded its involvement in civil rights cases and efforts to limit governmental power over individuals, often at the expense of federal and state legislatures. That trend has slowed. It remains to be seen how the recently appointed chief justice, John G. Roberts, will influence American history.

This installation of “Shaping the Future” highlights the final seven Supreme Court justices, from Charles E. Hughes in 1930 to John G. Roberts Jr. today.

Collection of the Supreme Court of the United States
Charles Evans Hughes, painting by G. B. Torrey
Charles Evans Hughes and the “Four Horsemen”

The 11th chief justice, Charles Evans Hughes, presided during the Great Depression in the 1930s.

President William Howard Taft appointed Hughes as an associate justice of the Supreme Court in 1910. But Hughes resigned from the court in 1916 to run as the Republican and Progressive presidential candidate against President Woodrow Wilson, losing the election to the incumbent by a slim Electoral College margin.

He returned to his law practice until President Harding appointed him secretary of state in 1921, a position that he held until 1925. President Hoover chose Hughes to replace retiring Chief Justice William Howard Taft in 1930.

Soon after Chief Justice Hughes took his seat on the court, the Great Depression descended upon America. Democrat Franklin D. Roosevelt was elected president in 1932, hoping to restore prosperity. The new president advanced legislation known as the “New Deal,” authorizing federal regulation of the national economy to an unprecedented extent.

Conflict was inevitable between the Supreme Court and Roosevelt. When the new administration took office in 1933, the court was divided. Justices Willis Van Devanter, George Sutherland, James C. McReynolds and Pierce Butler were the ideological heirs to the notion that the Constitution limited Congress’ powers and protected economic rights of businesses. These justices, sometimes referred to as the “Four Horsemen,” often voted as a bloc. At the other end of the spectrum were Justices Louis Brandeis, Harlan Fiske Stone and Benjamin N. Cardozo, who were more receptive to federal regulation. Chief Justice Hughes and Justice Owen J. Roberts were the court’s swing votes.

Constitutional challenges to the president’s programs soon reached the Hughes Court, the most famous of which occurred in Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935). Under the National Industrial Recovery Act, a showpiece of the New Deal, the president had approved a Live Poultry Code regulating wages, hours and ages of employees, proscribing certain trade practices and imposing reporting requirements on the poultry industry.

Writing for a unanimous court, Hughes found that NIRA conferred an unconstitutional delegation of legislative power to the president, and that the Live Poultry Code was an impermissible attempt to regulate local business. Answering the government’s argument that NIRA was necessary to address the national economic crisis, the chief justice wrote, “Extraordinary conditions do not create or enlarge constitutional power.”

The Hughes Court showed similar contempt for the president’s Agricultural Adjustment Act, which sought to boost farm prices by taxing agricultural commodities and subsidizing farmers who reduced their cultivated acreage. The court held that statute unconstitutional in United States v. Butler, 297 U.S. 1 (1936).

Following his landslide re-election in 1936, Roosevelt retaliated by submitting a judiciary reform bill to Congress that would add six new seats to the court. The president intended to fill the new seats with nominees sympathetic to his agenda. Members of Congress and the public denounced this controversial proposal. An adept politician himself, Hughes openly opposed the president’s plan.

Interestingly, soon after submission of the president’s judicial reform bill to Congress, the court began upholding New Deal legislation, such as the Wagner Act, a New Deal statute regulating labor disputes. That decision also expanded the scope of commerce subject to federal control. The Four Horsemen’s predictable dissent was futile. Soon after, the court upheld the Social Security Act, which provided old age benefits for workers and a special tax on employers and employees.

The court shifted further in June, when Justice Van Devanter retired and was replaced by Hugo Black. Additional retirements over the next two years enabled Roosevelt to appoint Stanley Reed, Felix Frankfurter and William O. Douglas to the Hughes Court, thereby enlarging the majority favoring the president’s programs.

Hughes retired from the court in 1941 and died in 1948. By reconsidering his opposition to New Deal legislation, he defused a major confrontation between the executive and judicial branches of the federal government.

Collection of the Supreme Court of the United States
Harlan Fiske Stone, painting by C. J. Fox
Harlan Fiske Stone and a famous footnote

Roosevelt chose Associate Justice Harlan Fiske Stone, a Republican, to replace Hughes in 1941. He would preside over the court during World War II.

Appointed as an associate justice in 1926, Stone was considered a noted jurist even while he served with some of the most influential jurists of the 20th century, such as Oliver Wendell Holmes Jr., Louis Brandeis, Charles Evans Hughes, Benjamin Cardozo, Hugo Black, William O. Douglas and Felix Frankfurter.

One of Stone’s dissents, in United States v. Butler, is particularly memorable. A majority in Butler invalidated portions of the federal Agricultural Adjustment Act, enacted to support farm prices. Stone’s dissent explained judicial review. He advised that courts should only be concerned with the legislature’s power to enact statutes, not the wisdom of such statutes. Further, while the executive and legislative branches are subject to judicial restraint, the only check on the court is its own self-restraint. Finally, parties challenging unwise laws should seek recourse through the ballot, not the courts.

Stone followed similar reasoning in United States v. Carolene Products Co., 304 U.S. 144 (1938), but with an important footnote that changed American constitutional law. The facts of Carolene Products were uninteresting. Congress had enacted the Filled Milk Act in 1923, prohibiting distribution of skim milk compounded with non-dairy fat or oil. The defendant advanced the usual arguments that had often prevailed; namely, that the statute was beyond Congress’s power to regulate interstate commerce, an invasion of states’ rights under the 10th Amendment, and a violation of the defendant’s rights to equal protection and due process under the Fifth Amendment. Stone was unimpressed.

He noted that Congress could regulate the distribution of filled milk under the Constitution’s commerce clause, subject only to Fifth Amendment restrictions against taking of private property without due process. He disagreed that the statute infringed upon the Fifth Amendment. Finally, Stone maintained that constitutionality is presumed for legislation that “rests upon some rational basis within the knowledge and experience of legislators.”

However, Stone appended a footnote to this last statement warning that the “presumption of constitutionality” may be limited if the legislation (1) appears to be within a specific prohibition of the Constitution, such as the Bill of Rights or the 14th Amendment, (2) restricts political processes that may bring about repeal of undesirable legislation, or (3) is directed at minority groups.

Later court decisions adopted this footnote, resulting in a dichotomy in the court’s analysis of legislation. The court usually upholds commercial legislation if there is a rational basis for it. In contrast, if the legislation restricts basic freedoms, voting rights or identifiable minorities, the court generally disallows the legislation.

When Roosevelt promoted Stone in 1941, all of the justices had either been appointed by the president or were generally sympathetic to his policies. World War II raged in Europe and the Far East, and after the surprise attack on Pearl Harbor, the United States entered that horrific conflict.

As news of Japanese triumphs and atrocities reached Americans, the president issued Executive Order No. 9066, authorizing military commanders to exclude “any or all persons” from such areas as they may designate. Congress approved the order in March. Although the order did not specify residents of Japanese descent, there was no secret as to whom it applied. The Western Defense Command quickly imposed a curfew on all Japanese-Americans and ordered them into detention camps in May.

Kyoshi Hirabayashi, a native-born American citizen and college student, refused to comply with the order and was sentenced to three months in prison. His suit reached the court in 1943. Chief Justice Stone’s unanimous decision upheld Hirabayashi’s conviction for violating the curfew in Hirabayashi v. United States. 320 U.S. 81 (1943). The decision avoided discussing the relocation order. Even Justices Black and Douglas, who later became champions for civil rights, approved the curfew under the circumstances.

The order’s relocation requirement faced constitutional challenge in Korematsu v. United States, 323 U.S. 214 (1944). Toyosaburo Korematsu, another native-born American citizen, had disobeyed a military order excluding residents of Japanese ancestry from the West Coast. Black upheld the relocation order while conceding that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” Stone joined Black’s opinion.

The holdings in Hirabayashi and Korematsu represent a major breakdown in America’s constitutional government. The breakdown, prompted by fear and racism during a vicious global war, is perhaps the most frightening because all three branches of the federal government sanctioned it.

Stone died in 1946 after 21 years on the court. Although the Japanese internment cases blemished the Stone Court, his decisions analyzing the constitutionality of legislation are important contributions to American jurisprudence.

Collection of the Supreme Court of the United States
Fred Moore Vinson, painting by W. F. Draper
Frederick M. Vinson and the twilight of the separate but equal doctrine

Frederick Moore Vinson was the 13th chief justice of the Supreme Court, and a close associate of President Harry Truman.

Following Harlan F. Stone’s death, Truman appointed Vinson as chief justice in 1946. Vinson remained closely associated with Truman, and this relationship may have influenced his dissent in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a seminal case defining constitutional limits on presidential powers.

Facing threatened labor unrest in the steel industry during the Korean War, in April 1952, Truman ordered the federal seizure of the nation’s steel mills. The president took this action without congressional approval, claiming the authority to do so as commander in chief of the military. The steel industry challenged the seizure. Black, writing for a plurality, agreed with the steel industry, holding that even during wartime, the president cannot take private property without an act of Congress. The chief justice dissented, arguing that the president’s seizure of steel mills was within the scope of his executive powers.

The Vinson Court expressed a willingness to reconsider cases involving alleged violations of the 14th Amendment’s equal protection clause. Shelley v. Kraemer, 334 U.S. 1 (1948) involved a restrictive covenant preventing African-Americans from owning property in a subdivision. The restrictive covenant was a private agreement, and no state or local governments were parties to the restrictive covenant.

This case presented the issue of whether the equal protection clause prevented a state court from issuing an injunction enforcing the restrictive covenant. Vinson wrote the court’s opinion, holding that a court’s injunction was state action prohibited by the 14th Amendment.

The court again considered the equal protection clause in Sweatt v. Painter, 339 U.S. 629 (1950), in which future Supreme Court Justice Thurgood Marshall represented Herman Sweatt, an African-American who was refused admission to the University of Texas Law School in 1946 because of his race.

At the time, Texas had no law schools that accepted African-Americans. Rather than simply admitting Sweatt to the law school, the state opened a segregated “law school for Negroes.” This law school was an understaffed, unaccredited and substandard fiasco. Sweatt pressed his case.

The chief justice wrote a unanimous opinion holding that the University of Texas Law School could not bar Sweatt from admission. In addition to discussing the separate law school’s shortcomings in its faculty and library, the chief justice added that the exclusion of white students effectively denied Sweatt a substantially equal legal education. The decision indicated that the “separate but equal” doctrine adopted in Plessy v. Ferguson was vulnerable.

Vinson died in September 1953. Under Vinson, the court began, belatedly, to reconsider lamentable 19th century precedent that had hindered equal protection for racial minorities. His successor, Earl Warren, would lead the Supreme Court toward active participation in the civil rights movement.

Collection of the Supreme Court of the United States
Earl Warren, painting by C. J. Fox
Earl Warren, champion of equal protection

President Dwight D. Eisenhower appointed Earl Warren, the popular Republican governor of California, to the Supreme Court in 1953. Eisenhower reportedly came to regret this appointment. Warren led a Supreme Court that often struck down federal and state legislation and procedures and did not hesitate to overrule existing court precedent.

Warren quickly made a name for the Warren Court with his unanimous opinion in Brown v. Board of Education, 347 U.S. 483 (1954), holding that racially segregated public schools violated the equal protection clause, and specifically overruling the “separate but equal” doctrine endorsed in Plessy v. Ferguson. Brown showed that state laws mandating racial segregation would no longer be acceptable in public education.

The unanimous decision presented a united front against racial segregation. Although the Brown decision did not immediately end segregated schools in America, it established the basis for successful legal challenges to racially divided education over ensuing decades.

The Warren Court issued other historic decisions regarding civil rights, voting, legislative apportionment, criminal procedure, privacy rights and school prayer. In National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958), the court unanimously held that a state could not force a political organization to disclose its membership, noting that freedom of association is protected under the due process clause of the 14th Amendment. The court unanimously held that a state could not redraw municipal boundaries to exclude minorities in Gomillion v. Lightfoot, 364 U.S. 339 (1960).

The chief justice joined the majority in Mapp v. Ohio, 367 U.S. 643 (1961), holding that the Constitution prohibits states from unlawful searches and seizures, and requiring that evidence unlawfully obtained must be excluded from criminal trials. The court’s decision in Gideon v. Wainwright, 372 U.S. 335 (1963) required state prosecutors to provide legal counsel to indigent criminal defendants. Warren ruled in Miranda v. Arizona, 384 U.S. 436 (1966), a 5-4 decision, that police cannot question a criminal suspect in custody without first informing him of his constitutional rights to remain silent and to obtain legal representation.

The chief justice joined Justice Douglas’ plurality opinion in Griswold v. Connecticut, 381 U.S. 479 (1965), involving a Connecticut law banning the use of contraceptives, even by married individuals. A divided court found that guaranties of freedoms in the Bill of Rights “have penumbras, formed by emanations from those guarantees that help give them life and substance.”

Following this logic, the court noted that the Constitution protects individuals’ rights to privacy, and that the marital relationship is within this protection. Accordingly, the Connecticut law was unconstitutional. After Warren’s retirement, the court expanded this right to privacy to nullify statutes outlawing the use of contraceptives by unmarried individuals and to secure constitutional protections for abortion and homosexual conduct.

Many Americans disapproved of the Warren Court’s decisions banning prayer in public schools. Engel v. Vitale, 370 U.S. 421 (1962) involved a New York policy encouraging a short, voluntary prayer at the beginning of each school day. Abington Township v. Schempp, 374 U.S. 203 (1963) was a challenge to a Pennsylvania law requiring public school students to participate in Bible readings, unless excused by their parents.

In both cases, the court found the school policies to be unconstitutional encroachments on the First Amendment guaranties against governmental establishment of religion. The court would later cite these cases in restricting religious expression on government property and at government-sponsored events.

Warren retired in 1969, enabling President Richard M. Nixon to appoint Warren E. Burger as his successor. Warren died on July 9, 1974, roughly one month before the Burger Court issued its historic decision precipitating that president’s resignation.

Critics have accused the Warren Court of “judicial activism” for its readiness to overturn legislation and prior court decisions. Such critics may question the propriety of un-elected justices nullifying laws passed by elected legislatures. However, few today would disparage the Warren Court’s protection of equal rights for racial minorities after decades of institutionalized segregation in the United States.

Collection of the Supreme Court of the United States
Warren E. Burger, painting by G. Augusta
Warren E. Burger, leading a divided court

Nixon selected Warren E. Burger as the 15th chief justice in 1969. The Burger Court was a fractured tribunal, with the justices often unable to render a decision without multiple opinions. However, the court acted unanimously in its most famous case, which hastened Nixon’s resignation in 1974.

Nixon resented the Warren Court’s decisions expanding constitutional protections for criminal suspects. The president hoped to reverse this trend by appointing Burger as chief justice. The results were mixed. Although a capable administrator, Chief Justice Burger was generally unable to forge a clear majority on important constitutional law decisions. This lack of consensus undermined the public’s respect for the court.

New York Times v. United States, 403 U.S. 713 (1971), known as the “Pentagon Papers Case,” exemplified divisions within the court. Classified Defense Department papers on the Vietnam War were leaked to the New York Times and Washington Post. The Nixon administration sought to enjoin publication. The court issued a per curiam opinion denying the injunction; however, a confusing array of concurring and dissenting opinions accompanied the opinion.

The justices issued another cacophony of opinions in Furman v. Georgia, 408 U.S. 238 (1972), which effectively invalidated all state death penalty statutes. Following the court’s one page per curiam opinion, each of the nine justices issued a separate opinion. These concurrences and dissents covered more than 200 pages. Most states retooled their death penalty statutes after Furman, and in Gregg v. Georgia, 428 U.S. 153 (1976), the court ruled that the death penalty for a murder conviction was not a per se violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.

Disunity again reigned in Eisenstadt v. Baird, 405 U.S. 438 (1972), challenging a Massachusetts law forbidding distribution of contraceptives unless prescribed by a physician to a married individual. William Baird, a birth control advocate but not a licensed physician, lectured to Boston University students and faculty regarding the use of contraceptives. After his speech, he offered the audience free samples of a vaginal contraceptive foam. At least one member of the audience accepted a sample. Baird was arrested and convicted under the Massachusetts statute.

Brennan wrote a plurality opinion, joined by Justices Douglas, Stewart and Marshall, overruling the conviction, because a state law denying contraceptives to unmarried individuals while allowing them to married individuals violated the equal protection clause of the 14th Amendment. Douglas concurred separately, asserting that Baird’s lecture was protected speech under the First Amendment. Justice White’s concurrence, in which Justice Blackmun joined, stated that Baird’s conviction should be overturned because the statute required a physician’s prescription for contraceptive sales even to married persons, which was an unconstitutional restriction on their right to use contraceptives.

Burger dissented, arguing simply that regardless of one’s opinion on the right to contraceptives, Baird was not a licensed physician and, therefore, his conviction should be upheld. Newly appointed Justices Lewis F. Powell and William H. Rehnquist did not participate.

The court showed some consensus in Roe v. Wade, 410 U.S. 113 (1973), where seven justices, including Burger, subscribed to a remarkable opinion holding that pregnant women have a constitutional right to choose an abortion. White and Rehnquist dissented from the majority’s decision. Abortion rights remain a hotly contested issue in America more than 30 years later.

In the area of school desegregation, the Burger Court strove to maintain the unanimity displayed in Brown v. Board of Education. Burger’s unanimous decision in Swan v. Charlotte Mecklenburg Board of Education, 402 U.S. 1 (1971) had far-reaching effects on local school districts throughout the nation. In spite of Brown, many districts had resisted school desegregation. By the 1970s, the federal courts were frustrated with this intransigence. Some courts ordered forced busing of students to achieve desegregation.

The chief justice ruled in Swan that courts have a broad range of remedial powers where local school districts allowed racially imbalanced schools and that forced busing was an appropriate remedy.

The court again issued multiple opinions in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), involving affirmative action policies at the University of California Medical School at Davis. Allan Bakke, a white man, had twice been denied admission to the medical school, which reserved 16 percent of its seats for minorities. Bakke’s qualifications were better than those of accepted minority students. Bakke sued the university for violating his right to equal protection under the law.

Justice Powell was credited with authoring the court’s opinion, which validated affirmative action programs but nevertheless ordered that Bakke be admitted to the medical school. However, with various justices authoring disparate opinions that concurred with portions of Powell’s opinions but dissented with other portions, it became virtually impossible to predict how the court would view affirmative action cases in the future. The issue remains divisive and unresolved.

The chief justice rendered his most historic decision in United States v. Nixon, 418 U.S. 683 (1974). During the 1972 presidential campaign, several individuals were apprehended breaking into the Democratic Party’s offices at the Watergate Hotel in Washington, D.C. An investigation resulted in criminal indictments against several of Nixon’s closest aides. The special prosecutor sought White House tapes by subpoena, but the president refused to comply, citing executive privilege.

The standoff quickly came to the Supreme Court. Aware of the looming constitutional crisis, Burger chose to write the opinion himself. Justice Rehnquist recused himself because he had been an assistant attorney general in the Nixon administration before his appointment to the court. The remaining seven justices subscribed to the chief justice’s opinion, holding that executive privilege did not excuse the president from complying with the subpoena. On Aug. 8, with impeachment a virtual certainty, a beleaguered Nixon announced his resignation, which took effect the following day.

Burger retired from the Supreme Court in September 1986, whereupon Rehnquist replaced him. Burger died of congestive heart failure in 1995.

Dane Penland, Smithsonian Institution,
Courtesy of the Supreme Court of the United States
William H. Rehnquist
William H. Rehnquist and presidential politics

President Ronald Reagan promoted William Rehnquist to chief justice in 1986. Rehnquist would become deeply involved in presidential politics, both as the presiding judge at the impeachment trial of President William J. Clinton in 1999, and as a deciding vote in the court’s 5-4 ruling that ensured President George W. Bush’s election in 2000.

As an associate justice, Rehnquist resisted expanding the rights of criminal suspects and privacy rights and extending the equal protection clause to non-racial minorities. When the court considered whether a constitutional right to privacy protected consensual homosexual intercourse in Bowers v. Hardwick, 478 U.S. 186 (1986), Rehnquist joined a 5-4 majority upholding a Georgia law criminalizing that activity. However, the precedent was short-lived, and the court specifically overruled that case in Lawrence v. Texas, 539 US 558 (2003) by a 6-3 vote, finding that statutes banning consensual homosexual conduct violated the due process clause. Chief Justice Rehnquist joined the dissent in Lawrence.

Associate Justice Rehnquist’s dissent in Craig v. Boren, 429 U.S. 190 (1976) displayed his unwillingness to apply the equal protection clause to gender-based discrimination. An Oklahoma statute established a higher drinking age for males than females. The court found this statute to be unconstitutional because the state had failed to prove that the disparate treatment of males and females was “substantially related” to the achievement of “important governmental objectives.”

Rehnquist dissented, asserting that the statute need only be supported by a “rational basis” to withstand constitutional scrutiny. In 1996, Rehnquist again showed reluctance to hold gender-based discrimination to the same standard as racially-based discrimination when he wrote a separate concurrence in United States v. Virginia, 518 U.S. 515 (1996). A majority in that case ruled that the Virginia Military Institute could not exclude women.

In 1999, Rehnquist became the first chief justice since Salmon Chase to preside at a presidential impeachment trial. The Monica Lewinsky affair and subsequent perjury charges against Clinton led Republicans in the House of Representatives to accuse the president of perjury and obstruction of justice, requesting impeachment. The Senate impeachment trial began on Jan. 7, 1999, with the chief justice swearing in all 100 senators. On Feb. 12, the chief justice tallied the senators’ votes and ordered the president’s acquittal.

The Rehnquist Court determined the contested presidential election of 2000, which pitted Democrat Al Gore Jr., the vice president, against Republican George W. Bush, the governor of Texas. Slim margins, hanging chads, court-approved challenges and deadlines for manual recounts triggered a series of maneuvers by both campaigns while Americans waited breathlessly for a final decision.

The nine justices of the Rehnquist Court would determine the election. The Rehnquist Court held a conservative faction, comprising the chief justice and Justices Antonin Scalia and Clarence Thomas, and a liberal faction comprising Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Predictions that the conservative wing would favor Bush and that the liberal wing would favor Gore proved correct. The decision depended on the swing votes, namely Justices Sandra Day O’Connor and Anthony Kennedy, both of whom had been appointed by Republican presidents. The court ruled in favor of the Bush campaign in Bush v. Gore, 531 U.S. 98 (2000).

The Rehnquist Court’s role in the 2000 election has been praised and criticized, generally along political lines. In any event, unofficial recounts have indicated that Bush won the Florida election by a margin of a few hundred votes.

During the last several months of his tenure, Rehnquist suffered from thyroid cancer and was often unable to participate fully in the court’s deliberations. He died on Sept. 3, 2005, in Arlington, Virginia. Immediately after his death, Bush nominated Judge John G. Roberts Jr., who had already been named to succeed O’Connor, who was retiring, as the new chief justice.

Steve Petteway, Collection of the Supreme Court of the United States
John G. Roberts Jr.
John G. Roberts Jr., the unfinished chapter

The Senate confirmed John G. Roberts Jr. as the 17th chief justice on Sept. 29, 2005, making him the first justice to be appointed to the Supreme Court since Clinton’s selection of Breyer in 1994. It is too early at this time to characterize the Roberts Court, although many anticipate that Roberts will join Scalia and Thomas on the court’s conservative wing.

On July 19, 2005, Bush chose Roberts to replace the retiring O’Connor as an associate justice, but after Rehnquist’s death, the president nominated him for the chief justice position. After contentious hearings before the Senate Judiciary Committee, the nomination was approved for vote by the entire Senate and Roberts secured Senate confirmation on Sept. 29, 2005, with all of the Republicans voting for him and half of the Democrats voting against him. The division of the Senate votes reflected the partisanship that has taken hold over Congress in recent years.

An indication of how Roberts will approach issues involving conflicts between state laws and the federal government surfaced on Jan. 17, 2006, in Gonzalez v. Oregon, which determined the validity of Oregon’s assisted suicide law. In 1970, Congress had passed the Controlled Substances Act in order to deter drug abuse. The attorney general issued regulations under the Act in 1971 requiring that prescriptions of certain drugs be used “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”

Oregon passed a law in 1994 allowing terminally ill patients to obtain a doctor’s prescription for life-ending drugs. Conservative Republicans in Congress, including Sen. John Ashcroft, urged the Clinton administration to oppose physician-assisted suicides, but without success. After Bush’s election, Ashcroft became attorney general, took the position that life-ending drugs did not serve a legitimate medical purpose and threatened physicians with the loss of their medical licenses if they prescribed such drugs. This position created a conflict between a state law enacted by an elected legislature and an interpretation of a federal regulation by a member of the president’s Cabinet.

In a 6-3 decision, a majority of the court held that the Oregon law prevailed over the attorney general’s interpretation. In arriving at this decision, the majority noted that the purpose of the Controlled Substances Act was to prevent illicit drug use and not to govern the practice of medicine generally.

The chief justice joined Scalia’s dissent, which would have given more deference to the attorney general’s interpretation and ruled against the Oregon statute. Roberts’s subscription to this dissent shows that he may be inclined to side with federal regulators when their interpretation of federal law conflicts with state law. It may also indicate a personal dislike for physician-assisted suicides.

At 51 years old, Roberts is likely to have a lengthy tenure on the Supreme Court, and to have a lasting influence on American law. His success will be measured largely by his understanding of federal and state legislation and Supreme Court precedent, his regard for the Constitution’s supremacy and his ability to build consensus among justices with differing views.

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