Will Roberts move left?

Judging John Roberts from his record, his writings and the near-unanimous opinion of both supporters and opponents, the Supreme Court nominee is a dyed-in-the-wool conservative whose confirmation would tilt the court further to the right.

But is it conceivable that within Roberts' chest, waiting to emerge within a few years under the mysterious influence of serving on the high court, beats the heart of a closet moderate?

With Roberts' confirmation hearings coming up on Tuesday, it's worth noting that this ideological migration has happened to others. Consider Justice Sandra Day O'Connor, whom Roberts would succeed.

On abortion, O'Connor was quoted as telling President Ronald Reagan before he appointed her in 1981 that the practice was "personally repugnant" to her and an "appropriate subject for state regulation." She told the Senate Judiciary Committee at her confirmation hearing, "I'm opposed to it, as a matter of birth control or otherwise."

On the court in 1983, she wrote in a dissent that the framework of Roe vs. Wade, the 1973 ruling that legalized abortion, had "no justification in law or logic." In a 1986 opinion, she referred to Roe vs. Wade as "the court's unworkable scheme for constitutionalizing the regulation of abortion."

But in 1992, when a seemingly conservative-dominated court was again squarely faced with the question of whether the Constitution protects a woman's right to an abortion, O'Connor was part of a 5-4 majority that said yes -- observing that, after 19 years, a generation of women had come to rely on that right and that the legitimacy of the court was at stake.

Another member of that majority was Justice Anthony Kennedy, who had appeared ready to scuttle Roe three years earlier when he voted to give states broad authority to regulate abortion. The 1992 ruling was also signed by Justice David Souter, who had been opposed by abortion-rights groups at his 1990 confirmation hearings and had cast the deciding vote in 1991 to uphold federal regulations that prohibited doctors at federally funded family planning clinics from even mentioning abortion as an option.

O'Connor also had a conservative record on racial issues. In a 1989 ruling, which struck down a city's program of setting aside a percentage of its contracts for minorities, O'Connor said all racial classifications, whether they were meant to benefit blacks or whites, were equally suspect. Granting preferences based on "unmeasurable claims of past wrongs," she wrote, was anathema to "the dream of a nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement."

But in 2003, O'Connor, for a 5-4 majority, wrote a ruling that allowed a law school to consider applicants' race as one factor in admissions. "Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized," she said.

Meanwhile, Kennedy, a Reagan appointee with conservative credentials, became an unlikely hero to lesbians and gays -- and a pariah to his onetime admirers on the religious right -- when he wrote the two most important gay-rights rulings in the court's history. One, in 1996, overturned a state law that would have barred local anti-discrimination ordinances based on sexual orientation, holding that private moral objections to homosexuality could not justify unequal treatment. The other, in 2003, struck down laws against private sexual conduct between consenting adults.

Souter, who had been recommended to the first President Bush by an adviser as a "home run" for conservatives, soon became a member of the court's (relatively) liberal wing. Its leader, Justice John Paul Stevens, was a 1975 Gerald Ford appointee whose early record was far from liberal:

He led the conservative bloc in the 1978 Allan Bakke case that outlawed quotas for disadvantaged minorities at the University of California and wrote a dissent in another affirmative action case in 1980 in which he argued that racial preferences "foster intolerance and antagonism against the entire membership of the favored class" (a view that seems at odds with O'Connor's 2003 ruling, which Stevens endorsed).

Will we be making the same observations about Justice Roberts' drift to the left 5 or 10 years from now?

His record -- at least, as much of it as can be gleaned from incomplete government documents spanning a quarter-century -- suggests conservative roots at least as deep as those of Justice William Rehnquist, for whom he once worked as a law clerk. (Since he joined the court in 1972, Rehnquist's biggest apparent change has been to add gold chevrons to the sleeves of his robe after becoming chief justice in 1986).

While the court was re-examining its abortion doctrine, Roberts was preparing a brief for the first Bush administration in 1991 saying Roe vs. Wade should be overturned. If that argument can be discounted as merely representing his client -- and it's a position that Roberts, a high-ranking deputy, probably could have shunned if he had found it offensive -- it seems consistent with his writings as a Reagan administration lawyer a decade earlier, when he referred to the "tragedy" of abortion and urged appointment of judges who "respect the sanctity of innocent human life."

Perhaps most revealing was his reference in a 1981 memo to "the so-called right to privacy," a view that would align Roberts not only with the current court's two arch-conservatives, Justices Clarence Thomas and Antonin Scalia, but also with Robert Bork, whose 1987 Supreme Court nomination was derailed partly over his rejection of the court's privacy doctrine.

Privacy, a right first declared by the court in a 1965 contraception case, became the foundation of both Roe vs. Wade and Kennedy's 2003 ruling on sexual conduct.

On other rights-related issues, Roberts has expressed similarly conservative opinions. During the Reagan administration, he argued that Congress could prohibit judges from ordering busing for school desegregation and that proof of intentional discrimination should be required for Voting Rights Act violations, two views that did not become law.

In 1981, he wrote that affirmative action violates "the bedrock principle of treating people on the basis of merit" and that such programs have failed because they "required the recruitment of inadequately prepared candidates." He also referred disparagingly in a 1983 memo to states' efforts to address "perceived problems of gender discrimination."

The thread that seems to bind all these arguments together is Roberts' view of the limits on judicial power to step between the government and private citizens. Judges, he recently told the Senate Judiciary Committee in response to written questions, "do not have a commission to solve society's problems."

Two decades earlier, he questioned the propriety of federal court review of state criminal convictions and sentences, and suggested that the Supreme Court could lighten its caseload if it abandoned "the role of fourth or fifth guesser in death penalty cases."

During his two years as a federal appeals court judge, he has disavowed judicial authority to intervene on behalf of veterans seeking damages for torture in Iraq, a Guantanamo prisoner claiming rights under the Geneva Conventions, and a 12-year-old girl arrested for eating a french fry in a Washington rail station.

On the other hand, friends and colleagues of Roberts have described him as open-minded, willing to be persuaded and anything but an ideologue. At Hogan & Hartson, the bipartisan Washington law firm where he spent half of his professional career, Roberts represented not only business clients but also an environmental agency, an office defending a preferential voting system for native Hawaiians, a group of welfare applicants and at least one prison inmate. He also helped gay-rights lawyers prepare for the 1996 Supreme Court case that resulted in Kennedy's landmark opinion -- a task that Roberts surely could have declined if the cause had repelled him.

Roberts' record as a litigator in 39 Supreme Court cases, plus his statements about respect for legal precedent, has convinced one court observer that President Bush is in for an unpleasant surprise.

"I'm expecting Roberts to look a lot like O'Connor, much to the disappointment of some people in the administration," said Craig Bradley, a law professor at Indiana University and, like Roberts, a former Rehnquist clerk. He said the institutional tug at the Supreme Court isn't so much toward the ideological left as it is toward the center -- in the direction of upholding precedent.

One statistical study suggests that both Kennedy and O'Connor have stayed closer to the conservative camp than their high-profile opinions would indicate. Between 1994 and 2003, the Harvard Law Review found, Kennedy, followed by O'Connor, had the highest overall rate of agreement with Rehnquist.

Lee Epstein, a professor of law and political science at Washington University in St. Louis and coauthor of the forthcoming book "Advice and Consent: The Politics of Judicial Appointments," said justices usually reflect the philosophies of the presidents who appointed them, particularly in their first five to 10 years on the court.

Among the current justices, Epstein said, O'Connor has probably changed the most, with the 2003 affirmative action case being the strongest evidence of a liberal shift. But she said O'Connor still remains at the ideological center of the current court, to the left of Kennedy, based on their voting records. Further to the right are Rehnquist, then Scalia and Thomas. To O'Connor's left are Justice Stephen Breyer, then Souter and Justice Ruth Bader Ginsburg, and finally Stevens.

•	Will Roberts move left? The ideological migration of other justices is instructive San Francisco Chronicle, Sunday, Sept. 4, 2005 Byline: Bob Egelko