The Nominee As a Young Pragmatist

Roberts's memo on the anti-busing bill, which was sponsored by Sen. Orrin G. Hatch (R-Utah) and co-sponsored by the late Sen. Strom Thurmond (R-S.C.), is instructive not just because it says something about Roberts's views on an important civil rights question but also because of the reasoning he used to dispute Olson.

Olson, he wrote, interpreted earlier court decisions as holding that "busing may in some circumstances be constitutionally required, and accordingly concludes that Congress may not flatly prohibit busing." Roberts, however, said that Olson was misreading precedent and that the bill was defensible because Congress is empowered to pass legislation to enforce the 14th Amendment, which bars states from denying equal protection under the law.

"Even if Olson's reading of the 13-year-old early busing court cases is correct, we have now had over a decade of experience with busing, and if that experience demonstrates that busing is not an effective remedy, Congress can legislate on the basis of that experience," he wrote. "I would conclude that it is within Congress's authority to determine that busing is counterproductive and to prohibit the federal courts from ordering it."

To do otherwise, Roberts warned, would undercut the administration's own legal strategy. "It strikes me as more than passing strange for us to tell Congress it cannot pass a law preventing courts from ordering busing when our own Justice Department invariably urges this policy on the courts."

Olson said yesterday that he did not recall the dispute with enough specificity to comment on it. "These were complicated questions," he said.

Roberts's busing memo is relevant now because of an ongoing dispute over Congress's power to enforce anti-discrimination laws. A conservative majority at the U.S. Supreme Court has limited that power in a series of recent cases, rejecting the argument of more liberal justices who say the rulings threaten basic rights secured by the 14th Amendment.

Martin H. Redish, a professor at Northwestern University School of Law in Chicago who specializes in federal court jurisdiction and constitutional law, said that Roberts's position on busing is "very controversial, and not one I accept."

But, he added, "reasonable people will disagree."

Political Shrewdness

Olson was not the only person with whom Roberts was willing to match legal wits. In a memo dated Jan. 13, 1984, he summarily dismissed retired Supreme Court justice Arthur Goldberg's concerns, expressed in a private letter to the White House, that the 1983 U.S. invasion of Grenada was unconstitutional.

"Goldberg is correct that the constitution vests the authority to declare war in the Congress," he said. The president, however, "has inherent authority in the international area to defend American lives and interests," an authority that "has been recognized since at least the time President Jefferson sent the marines to the shores of Tripoli. While there are no clear lines separating what the president can do on his own and what requires a formal declaration of war, the Grenada mission seems to be clearly acceptable."

Roberts adopted a similarly expansive view of presidential powers in his review of the proposed Immigration Emergency Act. The bill was drafted in response to the 1980 Mariel boatlift crisis that brought 125,000 Cuban refugees to U.S. shores. Roberts noted that the legislation would have allowed the United States to "flexibly detain" illegal immigrants as well as "freely transport them between detention facilities." He said: "It is a broad grant of emergency powers to the President, but I cannot conclude that it is too broad in light of the Mariel experience."

In August 1984, he gave Fielding the heads-up that then-Rep. Trent Lott (R-Miss.) may be upset to hear that the administration opposed an attempt by a private school in his state to appeal a court ruling that could cause it to lose its tax-exempt status because of alleged discrimination.