SEX AND THE SUPREMES.(gay rights)

There have been occasions in the history of the Supreme Court when simple professional excellence, more than any grittier consideration, was enough to propel a lawyer onto the bench. Ethnic and geographic balance, as well as a measure of ideological suitability, played some part in, say, Herbert Hoover's selection of Benjamin Nathan Cardozo, in 1932, or Dwight D. Eisenhower's choice of John M. Harlan, in 1955, but it was possible, too, to see these nominations as ratifications of a national consensus about lawyerly credentials. George W. Bush's designation of John G. Roberts, Jr., can be seen as following this tradition. Though he is only fifty years old, Roberts, who graduated magna cum laude from Harvard Law School, has been a clerk to two eminent judges (the late Henry J. Friendly, of the United States Court of Appeals in New York, and William Rehnquist, Roberts's likely future colleague), a lawyer in the Reagan White House, Principal Deputy Solicitor General under the first President Bush, and a leading private lawyer before the Justices. Since 2003, he has served on the U.S. Court of Appeals for the District of Columbia Circuit.

But the transformation of the politics surrounding the Court suggests another, less noble reason for the President's choice. Roberts's shimmering resume reveals everything except what really matters when one considers the potential impact of a Justice. More than ever before, the Supreme Court has become the national arbiter of cultural issues, and the last years of the Rehnquist Court have been characterized by a moderate consensus that has largely reflected the centrist views of the Justice whom Roberts would replace, Sandra Day O'Connor. On these issues Roberts has said little. When he was Deputy Solicitor General for the first President Bush, he argued for overturning Roe v. Wade, which legalized abortion. Yet in written responses during the confirmation hearings for the D.C. Circuit, in 2003, he said, "I do not believe that it is proper to infer a lawyer's personal views from the positions that lawyer may advocate on behalf of a client in litigation." He also described Roe as "binding precedent," although a Supreme Court Justice is far less bound by precedent than any lower-court judge.

In light of his argument against Roe, and because he was nominated by Bush, many reproductive-rights groups have rushed to condemn Roberts. For the same reasons, many conservatives have embraced him. According to Jay Sekulow, who runs the conservative American Center for Law and Justice, which was founded by the televangelist and onetime Presidential candidate Pat Robertson, "The President said he wanted a Justice in the mold of Scalia and Thomas"--Justices Antonin Scalia and Clarence Thomas--"and I think that's what he's got with John Roberts." But Roberts's paper trail, which is more extensive than is generally believed, suggests a more cautious assessment. His own words appear to support the view, expressed by many who know him, that he does not hold strong political beliefs. "I know one of the things that frustrates very much the judges who are on [the D.C. Circuit], all of whom are very hardworking," he said in his 2003 confirmation hearings, "is when they announce a decision and they're identified in the press as a Democratic appointee or a Republican appointee." And, Roberts added, "all of a sudden the report is, well, they just decided that way because of politics."

Roberts believes in the concept of judicial restraint. In a recent opinion in the D.C. Circuit, he chided his conservative brethren in a case about the regulation of raw materials used in making drugs, admonishing them, in Justice Felix Frankfurter's words, "to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case." In an answer to the senators about his judicial role models, he wrote, "I admire the judicial restraint of Holmes and Brandeis, the intellectual rigor of Frankfurter, the common sense and pragmatism of Jackson, the vision of John Marshall." The question, then, is how this potpourri of influences will translate into his opinions on the Court at a time when, like any Justice, he will be defined by his views on such issues as abortion, church-state controversies, and gay rights--an especially inflammatory issue in recent years.