The death penalty, inmate sentencing and conditions of confinement are just a few of the topics that John Roberts will face now that he has been sworn in as the new Chief Justice of the United States Supreme Court. And while many have questioned exactly which way Roberts will vote on inmate rights issues, it is almost impossible to guess definitely whether Roberts will stay conservative or become a moderate vote. 

"People often overlook the reality that a quite sizeable part of the Supreme Court covers criminal justice issues," said Douglas A. Berman, an Ohio State University Professor of Law and Legal Analyst. “The safest thing to say is that Roberts' career reveals little about his perspectives on these issues.”

According to Senator John Cornyn (R, TX), a member of the Senate Judiciary Committee, Roberts has been widely known for his wise contributions in the courtroom over his career. Cornyn described Roberts as "an exceptional judge, brilliant legal mind and a man of outstanding character" in a release.

But despite his reputation, David Fathi, of the American Civil Liberties Union National Prison Project simply sees Roberts as a one-for-one replacement for Chief Justice William Rehnquist.

“Rehnquist was no friend of prisoners and was a pretty consistent vote against the claims of prisoners,” Fathi said. “He was not the most hostile member of the court – but even if Roberts turns out to be fairly hostile to prisoners' rights, it's kind of a wash. We have to wait and see.”

Critical Of Roberts? Not yet.

Berman has a similar view of Roberts' confirmation to Rehnquist's seat, and notes that the court does shift depending on the Chief Justice.

“Rehnquist and O'Connor were among the most conservative of the justices on the Supreme Court – they were great justices, but they were pretty solid conservatives that upheld many rulings in that direction,” said Berman. “The court moved to the right dramatically during the Rehnquist years.”

So what does the confirmation of John Roberts mean for the Supreme Court – and inmate rights?

According Berman it's hard to tell because Roberts hasn't argued many cases that dealt exclusively with inmate rights.

"Roberts is very much a blank slate because criminal justice is not his practiced area," Berman said. "While he has done pro-bono work, and he is a wide-ranging practitioner, he only has a smattering of experience in criminal justice." 

While Roberts has worked on a number of cases – more than 30 - before the Supreme Court, his beliefs concerning inmate rights are hard to gauge. Roberts has spent time arguing cases for both the state and the individual – and has argued for both the liberal and conservative angles of legal cases.

For many legal analysts, Roberts' limited experience with cases concerning inmate rights raise questions about what his future rulings will be in this area.

"I'm not prepared to be critical of John Roberts," Berman said. “Fundamentally, we've often tended to see conservative judges move to the left on some of these issues – the facts, possible sentences and sympathetic angles sometimes soften a ‘tough-on-crime' attitude that a judge might have initially had.”

Although Roberts has argued before the Supreme Court on prisoner-related cases, he was working as an Assistant Solicitor General or a Deputy Solicitor General for some of them. Because he was usually working for the government – making it hard to determine what his personal opinions are on these issues.

The analysis of Roberts gets even more complicated once these cases are examined.

Roberts and Inmate Rights

In 1993, Roberts argued on behalf of the inmate plaintiff in the case of Keith Hudson vs. Jack McMillian before the U.S. Supreme Court. The suit was filed by Hudson, an inmate who claimed he was beaten by two officers on duty, McMillian and Marvin Wood, following an argument with McMillian. According to Hudson, his rights were violated because the officers used excessive force, testifying that he had suffered minor bruises, facial swelling, loosened teeth, and a cracked dental plate. Hudson also testified that a supervisor on duty had watched the beating, but only told the officers “not to have too much fun.”

While Roberts did argue on Hudson's behalf, his arguments were amicus curiae for the Department of Justice in support of Hudson's case.

Larry Spalding, Legislative Staff Counsel of the American Civil Liberties Union of Florida, believes that these cases like Hudson vs. McMillian don't necessarily indicate anything about Roberts' ideology in particular even though he once worked on a death-penalty case for free.

"You have to wonder – did he volunteer for those cases…or was he assigned to those cases?" Spalding said. "Law firms do pro-bono work in that area all the time."

Roberts was employed as a lawyer at the Hogan & Hartson law firm while working on many pro bono cases. In particular, Roberts argued one pro bono death penalty case involving John Ferguson, a man accused of killing eight people in Florida. The Ferguson case has been touted as one of the most infamous mass murder cases in Florida, and Spalding notes that although Roberts worked on the case, he spent a miniscule amount of time on it compared to the other attorneys.

"He has only served 25 hours on a death penalty case. I've come to the conclusion that it doesn't matter if you believe in the death penalty or not," Spalding said. "Because once you serve on a death penalty case, you realize the system is still faulty. No matter what your personal beliefs are, you have that epiphany – but I just wonder if you can have that epiphany in 25 hours."

Looking Ahead

For Berman, however, he will watch Roberts closely and hope that he makes fair choices in criminal cases. 

"Part of this whole thing is that we need to be particularly attentive to his first sets of cases so we have more insight into his approach to criminal justice issues,” Berman said. “He may start very conservative – and who knows? The one thing I want to keep an eye on is his past record with the elaborate and complicated jurisprudence around the 8th Amendment and the death penalty." 

Roberts adds that it's possible Roberts could make fair decisions because of his limited experience with criminal rights.

"There are people with long records on these issues that make choices I don't necessarily think are right," said Berman, "but there are people with short records that make great choices – to me.”

Despite the speculation surrounding the confirmation of Roberts, it no longer matters now that he holds a lifelong seat on the bench. 

"Right now," said Berman, "It's a lot of speculation – it's somewhat remarkable. It's hard to imagine that they could have picked someone with less criminal justice experience. All we can do is hope that he is fair and balanced – and not an ideologue as many fear."