By Jo Becker and Amy Argetsinger
Washington Post Staff Writers
Friday, July 22, 2005
As an up-and-coming young lawyer in the White House counsel's office from 1982 to 1986, John G. Roberts Jr. weighed in on some of the most controversial issues facing the Reagan administration, balancing conservative ideology with a savvy political pragmatism and a confidence that belied his years.
Asked to review legislation that would have prohibited lower federal courts from ordering busing to desegregate public schools, Roberts, now President Bush's nominee to the U.S. Supreme Court, took on no less a conservative legal scholar than Theodore B. Olson, who at the time was an assistant attorney general and later served as the solicitor general under Bush.
Olson had argued that based on his reading of case law, Congress could not flatly prohibit the busing of children to achieve racial balance in public schools. That argument did not impress Roberts, who was two weeks past his 29th birthday.
"I do not agree," Roberts wrote to White House counsel Fred F. Fielding in a memo dated Feb. 15, 1984. Congress has the authority "and can conclude -- the evidence supports this -- that busing promotes segregation rather than remedying it, by precipitating white flight."
But, he added, "Olson's view has already gone forward as the Administration view, and it would probably not be fruitful to reopen the issue at this point."
The memo -- and others like it that are available at the Ronald Reagan Presidential Library in Simi Valley, Calif. -- offers a revealing glimpse into the mind of a judge whose relatively short two-year tenure on the U.S. Court of Appeals for the D.C. Circuit has produced few clues on how he would vote on key issues facing the high court. Until now, the views that Roberts held in eight years as a government lawyer have remained largely unknown.
Before serving as an associate counsel in the Reagan White House, Roberts worked at the Justice Department under Attorney General William French Smith. He returned to the department in 1989, serving as principal deputy solicitor general under President George H.W. Bush.
The Reagan-era memos portray a cocksure young lawyer whose writing was clear, highly attuned to political realities and occasionally sarcastic.
Take, for instance, Roberts's response to a request sent by then-Rep. Elliott Levitas (D-Ga.) to Reagan. In 1983, the Supreme Court struck down laws that contained provisions for Congress to veto actions taken by executive departments and agencies. Levitas wanted to meet with Reagan to determine "the manner of power sharing and accountability within in the federal government." The request offended Roberts's notion of the proper separation of powers.
"There already has, of course, been a 'Conference on Power Sharing,' " Roberts wrote, sarcastically referring to the convention at which the Constitution was drafted. "It took place in Philadelphia's Constitution Hall in 1787, and someone should tell Levitas about it and the 'report' it issued."
Fielding said yesterday that during Roberts's tenure in the Reagan administration, he was known for his intelligence and dry sense of humor. While Fielding declined to comment on the specifics of any of Roberts's writings, he said they were in line with what he demanded from all his lawyers.
"My staff's role was to stimulate thoughts," Fielding said. "I encouraged people to give me their unvarnished analysis and personal views."
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.
Not a problem, the young lawyer explained in a memo dated Aug. 2, 1984.
A year earlier, the White House had been criticized for defending the right of discriminatory institutions to keep their tax exemptions, a battle it lost in the Supreme Court overturned. Now the White House appeared to be on the side of the black parents suing the Internal Revenue Service to investigate the school, run by Clarksville Baptist Church -- a stance that guaranteed "little press interest," Roberts said.
At the same time, Roberts wrote, the Justice Department could simply tell Lott "that Clarksville can still have its day in court" to defend its tax-exempt status -- "just not the Supreme Court."
He added: "If Lott complains, he should be advised that the present petition concerns a procedural matter and not the merits of Clarksville's tax-exempt status."
That same political acumen was on display in a memo dated Jan. 31, 1983, in which Roberts addressed the administration's pace on a housing discrimination bill. Some in the administration wanted to move quickly, since Reagan had hurt himself with many minority voters the year before when he was perceived to have dragged his feet on an extension of the Voting Rights Act.
"I think it is important, as the storm clouds gather over the issue of housing discrimination legislation, to recall what Mark Twain said of the cat who sat on a hot stove lid. The cat will never sit on a hot stove lid again, but it will also never sit on a cold one," Roberts wrote. "The fact that we were burned last year because we did not sail in with new voting rights legislation does not mean we will be hurt this year if we go slowly on housing legislation. . . . I do not think there is a need to concede all or many of the controversial points . . . to preclude political damage."
Less than six months later, Roberts did a final review of the bill. Everything seemed in order, he wrote, but he was concerned about language that suggested that the federal courts had historically enjoyed the confidence of the American people for their impartiality, independence and fairness.
"As a statement of historical fact this is untrue," Roberts noted. "The federal judiciary has been viewed by the American people with active distrust from the very beginning, when the Federalists packed the new courts to thwart the aspirations of Jeffersonian Republicans." But since the language had been inserted as an implicit criticism of a rival bill, he added, "I suppose it is tolerable."
Roberts often balanced his own views with political realities, as he did in a debate following the 1984 Supreme Court decision in a case called Grove City College v. Bell , in which the court determined that a 1972 federal law prohibiting sex discrimination in schools that receive government money applied only to those programs that received the funding, not the institutions as a whole.
The ruling, which threatened to upset dramatic gains for women's athletics among other programs, had prompted an outcry in Congress, and lawmakers were rushing to introduce bills that would again expand anti-discrimination rules across entire campuses. (A measure eventually succeeded, in 1988.) Administration officials were split over how to react. Some believed it was not fair that schools be forced to comply with such broad rules simply because they admitted students on federal loans and scholarships, and were arguing for a higher threshold.
That idea, Roberts wrote in a memo dated July 24, 1985, had "intuitive appeal." But as a "practical matter," he noted, it was too late for the White House to take that stance, since the administration had already conceded that argument before the Supreme Court. "Reversing our position on that issue at this point would precipitate a firestorm of criticism, with little chance of success," he concluded.Protecting Administration
Roberts was similarly protective of the administration on an unrelated matter.
In 1982, the administration clashed with Congress over its refusal to hand over documents from the Environmental Protection Agency on Superfund sites. Anne Gorsuch Burford, the agency director, later said that she refused to hand them over at the request of Reagan and the advice of the Justice Department. But a few months later, the Justice Department stopped representing her -- saying it was involved in investigating EPA corruption -- and she was forced to resign in the spring of 1983.
A December 1982 memo suggests that Roberts may have had a hand in drawing up that strategy. In the memo, he opposed defending Burford by arguing that she could not have complied with a subpoena because Reagan ordered her not to produce documents. He wrote: "The downside is significant: a Congressional contempt citation against the President [which] could be very politically damaging. With Mrs. Gorsuch in the case there is at least a 'buffer' separating the President from the dispute."
An aide to Burford later called the whole episode a "coldblooded, treacherous act of political callousness."
On March 23, 1984, Roberts went beyond his lawyerly duties of reviewing an assistant attorney general's planned Hill testimony and acted as damage-control strategist instead.
A year earlier, the State Department had denied an entry visa to Hortensia Allende, widow of overthrown Chilean socialist president Salvador Allende, saying that her planned speech to California churches on women's and human rights issues would be "prejudicial to U.S. interests" because she was supposedly a member of a communist organization. At hearings later that spring, the department acknowledged that it had similarly denied entry to hundreds of people in recent years -- and then went on to deny entry to Nicaraguan Interior Minister Tomas Borge in December 1983.
"We recommend deleting specific mention of the denial of visas to the widow of Chilean president Allende and Nicaragua Interior Minister Borge" from the speech, he wrote. "Those denials were, and continue to be, particularly controversial, and there is no need to mention them in this testimony."
Argetsinger reported from Simi Valley, Calif. Research editor Lucy Shackelford contributed to this report.