Roberts’ Nevada links
U.S. Supreme Court nominee John Roberts once served as defense counsel for the Tahoe Regional Planning Agency, ruled against a Las Vegas serviceperson, and has done some work for the casino industry.
In the Tahoe case, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, property owners sued the TRPA over a moratorium on land development that lasted 32 months. The owners’ attorneys raised questions of due process and illegal taking of property. The suit came at a time when the U.S. Supreme Court had been undercutting environmental protection and government restrictions on land use.
Douglas Kendall, a lawyer in a public-interest law firm, wrote last week in the Washington Post, “Facing the prospect of a devastating defeat, the Tahoe Regional Planning Agency did a very smart thing: It hired the best conservative Supreme Court advocate it could find. That advocate was Roberts, and he wrote the best legal brief I’ve ever read in a takings case.”
The court’s decision, written by Justice John Paul Stevens, ruled against the property owners. Stevens’ opinion said that a particularly rigorous or harsh moratorium could constitute a taking of property by government, but such a finding would need to be determined on a case-by-case basis. A mere temporary moratorium put in place while a development plan was being drawn up—the situation at Tahoe—was not a taking.
The conservative magazine National Review called the ruling “a substantial step backwards,” but there was relief at TRPA. Kendall says that it shows Roberts’ open-mindedness: “Indeed, his few judicial opinions on these kinds of laws suggest he’s skeptical about them. But his work on the Tahoe case does demonstrate that he has the ability to see both sides of a divisive issue. This is a critical quality for a Supreme Court justice. Roberts’s combination of intellect, skill and open-mindedness should temper, at least somewhat, anxiety about his nomination.” Others, however, consider it merely good work by a hired gun, not a reflection of Roberts’ personal views.
As a judge, Roberts sat on a case in the U.S. Court of Appeals for the District of Columbia circuit regarding servicepeople who had been tortured in the first Iraq war. Seventeen victims, including Lt. Col. Jeff Tice of Las Vegas, sued Iraq and won eventually a $959 million judgment. But the second Bush administration froze Iraq’s assets and opposed paying the judgment, saying the money was needed for reconstruction after the second Iraq war.
Tice sought U.S. Sen. Harry Reid’s assistance in collecting the judgment, and Reid got legislation through the Senate, but Judge Roberts and his colleagues voided the judgment and the U.S. Supreme Court declined to hear the case.
In 1999 as a private attorney, Roberts wrote a brief for the American Gaming Association, the gambling lobby group headed by former Reno attorney Frank Fahrenkopf, which was a player in the case Greater New Orleans Broadcast Association v. United States. In its decision, the court overturned the ban on advertising by casinos in the Communications Act of 1934.