WASHINGTON – Although Judge John Roberts (search) has had a distinguished legal career, with only two years of service on the U.S. Court of Appeals for the D.C. Circuit he has not established an extensive judicial record.
Some of the more instructive cases about his judicial philosophy are ones about which opponents have already begun to criticize the Supreme Court (search) nominee.
Click in the box to the right to watch a report by FOX News' Major Garrett.
Strange as it may sound, allies of Roberts have already had to prepare a french fry defense. The case relates to a lawsuit filed by the mother of a Washington schoolgirl. Back in 2000, 12-year-old Ansche Hedgepath (search) left her middle school for the subway, bought french fries along the way, took the fries into the station and ate one while awaiting her train.
D.C. Metro police officers enforcing a zero tolerance policy on eating or drinking arrested the little girl, handcuffed her, removed her shoelaces and had her fingerprinted before releasing her three hours later.
Hedgepath's mother sued, alleging illegal search and seizure and mistreatment of minors since adults who did the same thing were only given citations. Roberts wrote the appeals court opinion supporting Ansche's arrest.
"I am not going to make a big deal out of just one french fry or one case, I want to know what accounts for the philosophy that leads to such a case," said Harvard professor Laurence Tribe, who was an instructor to Roberts.
Roberts conceded that the subway policies were "foolish" and sympathized with Ansche's plight, but he posed the question about "not whether these policies were a bad idea, but whether they violated the 4th and 5th amendments to the Constitution. Like the district court, we conclude they did not."
"Judge Roberts was simply enforcing the law. Judge Roberts didn't make the law and this shows that he understands his role as a judge," Wendy Long, chief counsel for the Judicial Confirmation Network, told FOX News.
On the issue of abortion, Roberts, while a top attorney for the George H.W. Bush administration, co-signed a 1990 brief arguing for the overturning of the landmark abortion rights case Roe v. Wade. It came up at Roberts' confirmation hearing in 2003.
"That was the administration's position and the administration was my client," he said, later adding that he considered Roe "settled law."
The arroyo southwestern toad is also a case where Roberts' decision is being reviewed. Roberts dissented from a seven-to-two appeals court ruling upholding the use of the Endangered Species Act to protect the toad from construction of a new housing project in San Diego County.
The developer had sued, arguing interference with the project violated the Commerce Clause. Roberts' dissent suggested the appeals court gave the ESA more regulatory latitude than Congress intended.
"The panel's approach ... leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California, constitutes regulating commerce among the several states," Roberts wrote.
Another case sure to draw scrutiny involves the nullification of a $959 million judgment against Saddam Hussein's Iraq for torturing 17 U.S. soldiers captured in the Persian Gulf War. The soldiers sued under a federal law that allows financial damages for torture suffered at the hands of terrorist regimes.
Roberts and the two other appeals court judges canceled the multimillion-dollar award, citing a law passed after coalition forces toppled Saddam in 1993 and freed Iraq from a variety of U.S. sanctions. Roberts argued Congress intended to free post-Saddam Iraq from legal claims to expedite its reconstruction.
The goal, Roberts wrote, was "to strike a different balance in favor of the new government in Iraq. The whole point was to change existing rules to respond to new realities."