John Roberts: His OWN Views
Wednesday, September 14, 2005
So far during his Senate Judiciary Committee hearings, Supreme Court Chief Justice nominee John Roberts has tried to leave the impression that when he worked in the Reagan and Bush I administrations he was just acting as a staff attorney, advancing the views of those he worked for. In addition to the significant positions that Roberts held during that time, which belie such a claim, documents from the time also strongly suggest that, on at least 18 occasions, Roberts was putting forth his own views, not merely those of the administration. Indeed, ultraconservative lawyer Bruce Fein, who served with Roberts in the Reagan Justice Department, has acknowledged that Roberts was among “a band of ideological brothers” and that the deeply held convictions that Roberts demonstrated “aren’t principles that evaporate or walk away.”
Below are some examples of memos in which Roberts was plainly expressing his own views on important issues, not just the position of the Reagan White House.
IMMIGRANTS’ RIGHTS
Memorandum from Carolyn B. Kuhl and John Roberts to the Attorney General re Plyler v. Doe -- “The Texas Illegal Aliens Case” (June 15, 1982).
Roberts wrote that the solicitor general should have weighed in on Plyler v. Doe, a case in which the Supreme Court struck down a Texas law passed to keep children of undocumented immigrants from attending public schools. Roberts lamented that the administration’s “supposed litigation program to encourage judicial restraint did not get off the ground,” and that, if it had, it could have altered the outcome.
COURT-STRIPPING
Memorandum from John G. Roberts to Fred F. Fielding re Proposed Justice Report on S.139 (Anti-Busing Bill) (Feb. 15, 1984)
With respect to proposals to strip lower courts of any authority to ever order mandatory reassignment or busing as a remedy for unconstitutional school segregation, Roberts was also to the right of Ted Olson. Although Olson agreed that such bills were generally constitutional, he believed, in accord with clear Supreme Court precedent, that the courts had held that such remedies were sometimes constitutionally required to remedy segregation, and that lower federal courts must retain the power to use them if and when absolutely necessary. Roberts argued that the federal courts could be flatly prohibited from ordering such remedies in all desegregation cases, despite Supreme Court precedent, and continued to adhere to that legal view several years later even when he conceded to White House counsel Fred Fielding that Olson had achieved “victory in the extended internal debate.”
Memorandum from Theodore B. Olson for the Attorney General re Policy Implications of Legislation Withdrawing Supreme Court Appellate Jurisdiction over Classes of Constitutional Cases (Apr. 12, 1982) (handwritten notes of John Roberts in margin at page 9)
Olson wrote that opposition to court-stripping proposals would be perceived as “courageous.” In the margin, Roberts wrote that “real courage would be to read the Constitution as it should be read and not kowtow” to progressives and other who argued the contrary.
Memorandum from John Roberts on Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments (undated but attached to note from Kenneth Starr to Ted Olson on October 30, 1981)
and
Attachment to Memorandum from John Roberts to Solicitor General Rex Lee re BYU Antitrust Seminar Speech (Dec. 9, 1981)
Roberts wrote a 27-page memorandum arguing that it was proper to completely take away the Supreme Court’s ability to consider cases concerning abortion, school desegregation, and school prayer under the so-called “exceptions clause” to Article III, section 2 of the Constitution concerning the Supreme Court’s jurisdiction. In a 21-page memorandum several months later, however, Olson decisively refuted Roberts’ legal claims. The “exceptions clause” argument, Olson explained, “misperceives the proper role of constitutional interpretation” and presents a “greatly oversimplified and misleading view of the Constitution” by claiming that the “plain language” of a “few isolated words” in the Constitution should be a “conclusive guide to its interpretation.”
Though Roberts was initially assigned to write his memo from a specific advocacy perspective, it appears that Roberts did in fact agree with this restrictive legal view. Both before and after Olson’s refutation, Roberts adhered to his legal view. He suggested changes to a speech by Solicitor General Rex Lee because he thought it offered “intimations” concerning whether the Court could be stripped of jurisdiction.
He and Kenneth Starr continued to disagree with language suggested by Olson and Lee for Attorney General Smith on the issue until at least late April 1982, several days before Smith’s public letter siding with Olson’s view. [1]
ACCESS TO JUSTICE
Draft Memorandum of Jonathan C. Rose to Edward C. Schmults, Development of Legislative Change to 42 U.S.C. § 1983 (Aug. 6, 1982)
and
Memorandum from John Roberts to Steve Brogan re Development of Legislative changes to 47 U.S.C. § 1983 (Aug. 9, 1982)
When, in a section devoted to explaining the history of Section 1983 and its application, the OLP memo explains that, in Thiboutot “the Supreme Court has held that the phrase ‘and laws’ in § 1983 is not limited to civil rights or equal protection laws but applies to all statutory rights,” Roberts underlined the declaration and wrote “NO” next to it in the margin. He then responded to the draft with a memo of his own, alleging that the OLP had misinterpreted the Supreme Court precedent. Roberts refered to the OLP memo discussing “the § 1983 problem” and complained that the memo, “in its discussion of current law and legislative proposals to limit statutory claims . . . assumes that the Supreme Court held, in Maine v. Thiboutot, that the coverage of § 1983 extends to ‘all statutory rights.’” Roberts admitted that this is the “generally accepted view” of Thiboutot, but urged that the Administration “recognize limits . . ., and not necessarily accept the broadest reading of Thiboutot as the only one.” He also suggested that “[o]ur legislative proposals” to decrease the types of rights enforceable under Section 1983 “could perhaps even be cast as efforts to ‘clarify’ rather than ‘overturn’ that decision.” Roberts’ overall view is clear; action should be taken to “undo the damage” he claimed was caused by Thiboutot.
GENDER DISCRIMINATION
Memorandum from John Roberts to the Attorney General, re Proposed Intervention in
Canterino v. Wilson (Feb. 12, 1982)
Roberts argued that the Justice Department should not intervene in a case on behalf of female prisoners who were discriminated against in job-training programs, contradicting even the views of extremely conservative Reagan lieutenant William Bradford Reynolds.
Memorandum from John Roberts to the Attorney General (Dec. 8, 1981)
and
Background paper “prepared by John Roberts,” attached to Memorandum from Kenneth W. Starr to William Bradford Reynolds (Mar. 8, 1982)
Roberts supported a proposal to limit the types of federal financial assistance to students that would trigger Title IX’s non-discrimination requirements. In December of 1981, Roberts wrote, “I recommend acceding to” a Department of Education proposal to narrow the coverage of several civil rights laws by redefining the definition of “federal financial assistance.” A later memo outlining the chronology of this issue made it clear that not even the Civil Rights Division, headed by the ultraconservative William Bradford Reynolds, supported Roberts’ position.
Memorandum from John Roberts to the Attorney General re University of Richmond v. Bell (Aug. 31, 1982)
Roberts made it clear in a memorandum written in 1982 that he personally supported another extremely limited interpretation of Title IX, one that would effectively eviscerate the law by allowing schools that received federal funds in one program (e.g., scientific research) to engage in sex discrimination in other programs (e.g., athletics). Roberts wrote, referring to the views of William Bradford Reynolds, “I strongly agree with Brad’s recommendation not to appeal” a district court ruling holding that Title IX coverage extended only to the specific program within a school that received federal financial assistance.
Memorandum from John G. Roberts to Fred F. Fielding re AFSCME v. Washington: Comparable Worth Case (Feb. 3, 1984)
and
Memorandum from John G. Roberts to Fred F. Fielding re Nancy Risque Request for
Guidance on Letter from Congresswomen Snowe et al. (Feb. 20, 1984)
In a 1984 memorandum to Fred Fielding regarding the gender pay equity concept of "comparable worth," Roberts wrote that “It is difficult to exaggerate the perniciousness of the ‘comparable worth’ theory. It mandates nothing less than central planning of the economy by judges” [emphasis added]. And, in response to a letter to the Reagan Administration from three Republican female members of Congress, including now-Senator Olympia Snowe, asking the Administration not to intervene in a case accepting the comparable worth theory, Roberts wrote in February of 1984, “The letter contends that women stand to gain substantially from Judge Tanner’s decision, which is doubtless true as a conclusion [but] unavailing as an argument. I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be 'from each according to his ability, to each according to her gender.'" [emphasis added]
CIVIL RIGHTS
Memorandum from John Roberts to William Bradford Reynolds and Chuck Cooper re: Employment Discrimination Suits against Clayton and Gwinnett Counties (Oct. 26, 1981)
Roberts strongly challenged a proposed settlement for a job discrimination case, saying that lawyers in the civil rights division had gone too far by advising school systems to offer jobs and back pay not only to those who had been turned down for work due to discriminatory policies but also to those who could show they were deterred by bias from applying for jobs. Roberts called the requirement “staggering.” Roberts also made the incredible claim that an employer with a “blanket policy of rejecting all blacks simply because they were black” would “not give rise to a claim for relief under Title VII” unless it could be proved that the rejected applicants were “more qualified than white applicants who were hired,” directly contradicting established employment discrimination law. In this case, Roberts was more resistant to civil rights remedies than was William Bradford Reynolds.
Memorandum from John G. Roberts to Fred F. Fielding re Fair Housing (January 31, 1983)
While in the White House, Roberts also sought to slow progress on combating discrimination in housing. He argued that the Administration should “go slowly” on proposed fair housing legislation, claiming that such legislation represented “[g]overnment intrusion.” In 1988, President Reagan proudly signed far-reaching fair housing legislation, which was enacted with overwhelming bipartisan support.
Memorandum from John Roberts to the Attorney General re Solicitor General Briefs in EEOC Cases (June 16, 1982).
In a 1982 memorandum to the Attorney General, Roberts complained that the Solicitor General’s office was not “sufficiently sensitive to the policy views of the Civil Rights Division,” headed by ultra-conservative Brad Reynolds. Roberts criticized the Solicitor General for defending the position of the Equal Employment Opportunity Commission in favor of discrimination victims in several cases, including one in which the Solicitor General reportedly sought to expand the use of the “effects test in employment cases.” Roberts urged the Attorney General to rein in the Solicitor General by ensuring, even in cases where he was representing the independent EEOC, that he fully advised and consulted the Civil Rights Division as he would in a case involving the Division itself.
RIGHTS OF THE DISABLED
Memorandum from John Roberts to the Attorney General re Government Participation and Supreme Court Decision in Board of Education v. Rowley (July 7, 1982).
In 1982, Roberts criticized the Solicitor General’s office for intervening on behalf of a deaf student in a case brought under the Education of the Handicapped Act. Lower courts had held that the student, whose achievement was well below her potential, was entitled under the Act to receive the services of a sign-language interpreter in the classroom. The Supreme Court reversed the lower court’s ruling, at which point Roberts denounced the dissenters as an “activist duo” and criticized the SG’s office for intervening on behalf of the student in the first place.
PRIVACY
Memorandum from John Roberts to the Attorney General re Erwin Griswold Correspondence (Dec. 11, 1981)
In a December 1981 memorandum to Attorney General William French Smith, Roberts wrote disparagingly of the constitutional right to privacy, referring to it as the “so-called ‘right to privacy.’” The memorandum concerned an article by Erwin Griswold in which Roberts informed Smith that Griswold argued “as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade.”
RELIGIOUS LIBERTY
Memorandum from John G. Roberts to Fred F. Fielding re Wallace v. Jaffree (June 4, 1985)
In a memo about a Supreme Court Establishment Clause case, Roberts wrote approvingly of an apparent effort by Justice Rehnquist to overturn the Lemon test for analyzing separation of church and state cases. Roberts wrote, “Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority. Which is not to say the effort was misguided. In the larger scheme of things what is important is not whether this law is upheld or struck down, but what test is applied.”
Memorandum from John G. Roberts to Fred F. Fielding re Address by Secretary Bennett to Supreme Council Meeting of Knights of Columbus (Aug. 6, 1985)
Roberts reviewed a speech by then-Education Secretary William Bennett that characterized recent Establishment Clause cases as examples of “a new sort of aversion to religion” and that specifically criticized a Supreme Court ruling striking down the posting of the Ten Commandments in Kentucky schools. Roberts wrote that he had “no quarrel with Bennett on the merits.”
CIVIL LIBERTIES
Memorandum from John G. Roberts to Fred F. Fielding re National I.D. Comments (Oct. 21, 1983)
As Associate White House Counsel, Roberts in 1983 wrote a memo to Fred Fielding in which he expressed support for a national identification card, although that was not the position of the Counsel’s Office, and also minimized the civil liberties concerns. In response to a note from Fred Fielding in which Fielding stated that “I am adamantly opposed to a Nat’l I.D. process,” Roberts wrote to Fielding: “I recognize that our office is on record in opposition to a secure national identifier, and I will be ever alert to defend that position. I should point out, however, that I personally do not agree with it.” Roberts went on to add: “And I think we can ill afford to cling to symbolism in the face of the real threat to our social fabric posed by uncontrolled immigration.”
PRESIDENTIAL POWER
Memorandum from John G. Roberts to Fred F. Fielding re inquiry from Legal Services Corporation (Jan. 9, 1984)
While at the White House, Roberts took a position to the right of archconservative Ted Olson on the issue of recess appointments. In response to concerns about recess appointments by President Reagan to the Legal Service Corporation (LSC) board ordering deep cutbacks to legal services programs, Congress enacted a provision requiring that any such funding cuts be authorized by LSC board members properly confirmed by Congress. Roberts reported that there was a “sharp difference of views” with the Justice Department Office of Legal Counsel on the constitutionality of the provision, and that the head of the office, Ted Olson, “found the issues very difficult.” Roberts, however, had no such doubts. According to him, the issues were not “particularly difficult” and the Administration should “resist any Congressional effort to demean the recess appointment power by distinguishing between the powers of confirmed and recess-appointed nominees.”
So far during his Senate Judiciary Committee hearings, Supreme Court Chief Justice nominee John Roberts has tried to leave the impression that when he worked in the Reagan and Bush I administrations he was just acting as a staff attorney, advancing the views of those he worked for. In addition to the significant positions that Roberts held during that time, which belie such a claim, documents from the time also strongly suggest that, on at least 18 occasions, Roberts was putting forth his own views, not merely those of the administration. Indeed, ultraconservative lawyer Bruce Fein, who served with Roberts in the Reagan Justice Department, has acknowledged that Roberts was among “a band of ideological brothers” and that the deeply held convictions that Roberts demonstrated “aren’t principles that evaporate or walk away.”
Below are some examples of memos in which Roberts was plainly expressing his own views on important issues, not just the position of the Reagan White House.
IMMIGRANTS’ RIGHTS
Memorandum from Carolyn B. Kuhl and John Roberts to the Attorney General re Plyler v. Doe -- “The Texas Illegal Aliens Case” (June 15, 1982).
Roberts wrote that the solicitor general should have weighed in on Plyler v. Doe, a case in which the Supreme Court struck down a Texas law passed to keep children of undocumented immigrants from attending public schools. Roberts lamented that the administration’s “supposed litigation program to encourage judicial restraint did not get off the ground,” and that, if it had, it could have altered the outcome.
COURT-STRIPPING
Memorandum from John G. Roberts to Fred F. Fielding re Proposed Justice Report on S.139 (Anti-Busing Bill) (Feb. 15, 1984)
With respect to proposals to strip lower courts of any authority to ever order mandatory reassignment or busing as a remedy for unconstitutional school segregation, Roberts was also to the right of Ted Olson. Although Olson agreed that such bills were generally constitutional, he believed, in accord with clear Supreme Court precedent, that the courts had held that such remedies were sometimes constitutionally required to remedy segregation, and that lower federal courts must retain the power to use them if and when absolutely necessary. Roberts argued that the federal courts could be flatly prohibited from ordering such remedies in all desegregation cases, despite Supreme Court precedent, and continued to adhere to that legal view several years later even when he conceded to White House counsel Fred Fielding that Olson had achieved “victory in the extended internal debate.”
Memorandum from Theodore B. Olson for the Attorney General re Policy Implications of Legislation Withdrawing Supreme Court Appellate Jurisdiction over Classes of Constitutional Cases (Apr. 12, 1982) (handwritten notes of John Roberts in margin at page 9)
Olson wrote that opposition to court-stripping proposals would be perceived as “courageous.” In the margin, Roberts wrote that “real courage would be to read the Constitution as it should be read and not kowtow” to progressives and other who argued the contrary.
Memorandum from John Roberts on Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments (undated but attached to note from Kenneth Starr to Ted Olson on October 30, 1981)
and
Attachment to Memorandum from John Roberts to Solicitor General Rex Lee re BYU Antitrust Seminar Speech (Dec. 9, 1981)
Roberts wrote a 27-page memorandum arguing that it was proper to completely take away the Supreme Court’s ability to consider cases concerning abortion, school desegregation, and school prayer under the so-called “exceptions clause” to Article III, section 2 of the Constitution concerning the Supreme Court’s jurisdiction. In a 21-page memorandum several months later, however, Olson decisively refuted Roberts’ legal claims. The “exceptions clause” argument, Olson explained, “misperceives the proper role of constitutional interpretation” and presents a “greatly oversimplified and misleading view of the Constitution” by claiming that the “plain language” of a “few isolated words” in the Constitution should be a “conclusive guide to its interpretation.”
Though Roberts was initially assigned to write his memo from a specific advocacy perspective, it appears that Roberts did in fact agree with this restrictive legal view. Both before and after Olson’s refutation, Roberts adhered to his legal view. He suggested changes to a speech by Solicitor General Rex Lee because he thought it offered “intimations” concerning whether the Court could be stripped of jurisdiction.
He and Kenneth Starr continued to disagree with language suggested by Olson and Lee for Attorney General Smith on the issue until at least late April 1982, several days before Smith’s public letter siding with Olson’s view. [1]
ACCESS TO JUSTICE
Draft Memorandum of Jonathan C. Rose to Edward C. Schmults, Development of Legislative Change to 42 U.S.C. § 1983 (Aug. 6, 1982)
and
Memorandum from John Roberts to Steve Brogan re Development of Legislative changes to 47 U.S.C. § 1983 (Aug. 9, 1982)
When, in a section devoted to explaining the history of Section 1983 and its application, the OLP memo explains that, in Thiboutot “the Supreme Court has held that the phrase ‘and laws’ in § 1983 is not limited to civil rights or equal protection laws but applies to all statutory rights,” Roberts underlined the declaration and wrote “NO” next to it in the margin. He then responded to the draft with a memo of his own, alleging that the OLP had misinterpreted the Supreme Court precedent. Roberts refered to the OLP memo discussing “the § 1983 problem” and complained that the memo, “in its discussion of current law and legislative proposals to limit statutory claims . . . assumes that the Supreme Court held, in Maine v. Thiboutot, that the coverage of § 1983 extends to ‘all statutory rights.’” Roberts admitted that this is the “generally accepted view” of Thiboutot, but urged that the Administration “recognize limits . . ., and not necessarily accept the broadest reading of Thiboutot as the only one.” He also suggested that “[o]ur legislative proposals” to decrease the types of rights enforceable under Section 1983 “could perhaps even be cast as efforts to ‘clarify’ rather than ‘overturn’ that decision.” Roberts’ overall view is clear; action should be taken to “undo the damage” he claimed was caused by Thiboutot.
GENDER DISCRIMINATION
Memorandum from John Roberts to the Attorney General, re Proposed Intervention in
Canterino v. Wilson (Feb. 12, 1982)
Roberts argued that the Justice Department should not intervene in a case on behalf of female prisoners who were discriminated against in job-training programs, contradicting even the views of extremely conservative Reagan lieutenant William Bradford Reynolds.
Memorandum from John Roberts to the Attorney General (Dec. 8, 1981)
and
Background paper “prepared by John Roberts,” attached to Memorandum from Kenneth W. Starr to William Bradford Reynolds (Mar. 8, 1982)
Roberts supported a proposal to limit the types of federal financial assistance to students that would trigger Title IX’s non-discrimination requirements. In December of 1981, Roberts wrote, “I recommend acceding to” a Department of Education proposal to narrow the coverage of several civil rights laws by redefining the definition of “federal financial assistance.” A later memo outlining the chronology of this issue made it clear that not even the Civil Rights Division, headed by the ultraconservative William Bradford Reynolds, supported Roberts’ position.
Memorandum from John Roberts to the Attorney General re University of Richmond v. Bell (Aug. 31, 1982)
Roberts made it clear in a memorandum written in 1982 that he personally supported another extremely limited interpretation of Title IX, one that would effectively eviscerate the law by allowing schools that received federal funds in one program (e.g., scientific research) to engage in sex discrimination in other programs (e.g., athletics). Roberts wrote, referring to the views of William Bradford Reynolds, “I strongly agree with Brad’s recommendation not to appeal” a district court ruling holding that Title IX coverage extended only to the specific program within a school that received federal financial assistance.
Memorandum from John G. Roberts to Fred F. Fielding re AFSCME v. Washington: Comparable Worth Case (Feb. 3, 1984)
and
Memorandum from John G. Roberts to Fred F. Fielding re Nancy Risque Request for
Guidance on Letter from Congresswomen Snowe et al. (Feb. 20, 1984)
In a 1984 memorandum to Fred Fielding regarding the gender pay equity concept of "comparable worth," Roberts wrote that “It is difficult to exaggerate the perniciousness of the ‘comparable worth’ theory. It mandates nothing less than central planning of the economy by judges” [emphasis added]. And, in response to a letter to the Reagan Administration from three Republican female members of Congress, including now-Senator Olympia Snowe, asking the Administration not to intervene in a case accepting the comparable worth theory, Roberts wrote in February of 1984, “The letter contends that women stand to gain substantially from Judge Tanner’s decision, which is doubtless true as a conclusion [but] unavailing as an argument. I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be 'from each according to his ability, to each according to her gender.'" [emphasis added]
CIVIL RIGHTS
Memorandum from John Roberts to William Bradford Reynolds and Chuck Cooper re: Employment Discrimination Suits against Clayton and Gwinnett Counties (Oct. 26, 1981)
Roberts strongly challenged a proposed settlement for a job discrimination case, saying that lawyers in the civil rights division had gone too far by advising school systems to offer jobs and back pay not only to those who had been turned down for work due to discriminatory policies but also to those who could show they were deterred by bias from applying for jobs. Roberts called the requirement “staggering.” Roberts also made the incredible claim that an employer with a “blanket policy of rejecting all blacks simply because they were black” would “not give rise to a claim for relief under Title VII” unless it could be proved that the rejected applicants were “more qualified than white applicants who were hired,” directly contradicting established employment discrimination law. In this case, Roberts was more resistant to civil rights remedies than was William Bradford Reynolds.
Memorandum from John G. Roberts to Fred F. Fielding re Fair Housing (January 31, 1983)
While in the White House, Roberts also sought to slow progress on combating discrimination in housing. He argued that the Administration should “go slowly” on proposed fair housing legislation, claiming that such legislation represented “[g]overnment intrusion.” In 1988, President Reagan proudly signed far-reaching fair housing legislation, which was enacted with overwhelming bipartisan support.
Memorandum from John Roberts to the Attorney General re Solicitor General Briefs in EEOC Cases (June 16, 1982).
In a 1982 memorandum to the Attorney General, Roberts complained that the Solicitor General’s office was not “sufficiently sensitive to the policy views of the Civil Rights Division,” headed by ultra-conservative Brad Reynolds. Roberts criticized the Solicitor General for defending the position of the Equal Employment Opportunity Commission in favor of discrimination victims in several cases, including one in which the Solicitor General reportedly sought to expand the use of the “effects test in employment cases.” Roberts urged the Attorney General to rein in the Solicitor General by ensuring, even in cases where he was representing the independent EEOC, that he fully advised and consulted the Civil Rights Division as he would in a case involving the Division itself.
RIGHTS OF THE DISABLED
Memorandum from John Roberts to the Attorney General re Government Participation and Supreme Court Decision in Board of Education v. Rowley (July 7, 1982).
In 1982, Roberts criticized the Solicitor General’s office for intervening on behalf of a deaf student in a case brought under the Education of the Handicapped Act. Lower courts had held that the student, whose achievement was well below her potential, was entitled under the Act to receive the services of a sign-language interpreter in the classroom. The Supreme Court reversed the lower court’s ruling, at which point Roberts denounced the dissenters as an “activist duo” and criticized the SG’s office for intervening on behalf of the student in the first place.
PRIVACY
Memorandum from John Roberts to the Attorney General re Erwin Griswold Correspondence (Dec. 11, 1981)
In a December 1981 memorandum to Attorney General William French Smith, Roberts wrote disparagingly of the constitutional right to privacy, referring to it as the “so-called ‘right to privacy.’” The memorandum concerned an article by Erwin Griswold in which Roberts informed Smith that Griswold argued “as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade.”
RELIGIOUS LIBERTY
Memorandum from John G. Roberts to Fred F. Fielding re Wallace v. Jaffree (June 4, 1985)
In a memo about a Supreme Court Establishment Clause case, Roberts wrote approvingly of an apparent effort by Justice Rehnquist to overturn the Lemon test for analyzing separation of church and state cases. Roberts wrote, “Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority. Which is not to say the effort was misguided. In the larger scheme of things what is important is not whether this law is upheld or struck down, but what test is applied.”
Memorandum from John G. Roberts to Fred F. Fielding re Address by Secretary Bennett to Supreme Council Meeting of Knights of Columbus (Aug. 6, 1985)
Roberts reviewed a speech by then-Education Secretary William Bennett that characterized recent Establishment Clause cases as examples of “a new sort of aversion to religion” and that specifically criticized a Supreme Court ruling striking down the posting of the Ten Commandments in Kentucky schools. Roberts wrote that he had “no quarrel with Bennett on the merits.”
CIVIL LIBERTIES
Memorandum from John G. Roberts to Fred F. Fielding re National I.D. Comments (Oct. 21, 1983)
As Associate White House Counsel, Roberts in 1983 wrote a memo to Fred Fielding in which he expressed support for a national identification card, although that was not the position of the Counsel’s Office, and also minimized the civil liberties concerns. In response to a note from Fred Fielding in which Fielding stated that “I am adamantly opposed to a Nat’l I.D. process,” Roberts wrote to Fielding: “I recognize that our office is on record in opposition to a secure national identifier, and I will be ever alert to defend that position. I should point out, however, that I personally do not agree with it.” Roberts went on to add: “And I think we can ill afford to cling to symbolism in the face of the real threat to our social fabric posed by uncontrolled immigration.”
PRESIDENTIAL POWER
Memorandum from John G. Roberts to Fred F. Fielding re inquiry from Legal Services Corporation (Jan. 9, 1984)
While at the White House, Roberts took a position to the right of archconservative Ted Olson on the issue of recess appointments. In response to concerns about recess appointments by President Reagan to the Legal Service Corporation (LSC) board ordering deep cutbacks to legal services programs, Congress enacted a provision requiring that any such funding cuts be authorized by LSC board members properly confirmed by Congress. Roberts reported that there was a “sharp difference of views” with the Justice Department Office of Legal Counsel on the constitutionality of the provision, and that the head of the office, Ted Olson, “found the issues very difficult.” Roberts, however, had no such doubts. According to him, the issues were not “particularly difficult” and the Administration should “resist any Congressional effort to demean the recess appointment power by distinguishing between the powers of confirmed and recess-appointed nominees.”
[1] It is now unclear what Roberts' views on this issue are. In his testimony on Tuesday, John Roberts said, “If I were to look at the question [of the constitutionality of laws stripping the Supreme Court of jurisdiction over certain kinds of cases] today, to be honest with you, I don't know where I would come out.”