By R. Jeffrey Smith, Jo Becker and Amy Goldstein
Washington Post Staff Writers
Wednesday, July 27, 2005
Newly released documents show that John G. Roberts Jr. was a significant backstage player in the legal policy debates of the early Reagan administration, confidently debating older Justice Department officials and supplying them with arguments and information that they used to wage a bureaucratic struggle for the president's agenda.
Roberts presented a defense of bills in Congress that would have stripped the Supreme Court of jurisdiction over abortion, busing and school prayer cases; he argued for a narrow interpretation of Title IX, the landmark law that bars sex discrimination in intercollegiate athletic programs; and he even counseled his boss on how to tell the Rev. Martin Luther King Jr.'s widow that the administration was cutting off federal funding for the Atlanta center that bears his name.
The documents are from Roberts's 1981-1982 tenure as a special assistant to Attorney General William French Smith. Like previously reported memos from Roberts's stint in President Ronald Reagan's White House in the mid-1980s, the documents made available from the National Archives yesterday show a man in his mid-twenties deeply engaged in the conservative restructuring of government that the new president had promised.
To a greater extent than the White House documents previously released, the more than 15,000 pages of Justice Department memos show Roberts speaking at times in his own voice. In memos to the attorney general or senior officials of the Justice Department, Roberts argued for restrictions on the rights of prisoners to litigate their grievances; depicted as "judicial activism" a lower court's order requiring a sign-language interpreter for a hearing-impaired public school student who had already been given a hearing aid and tutors; and argued for wider latitude for prosecutors and police to question suspects out of the presence of their attorneys.
In the rare instances revealed in the documents in which Roberts disagreed with his superiors on the proper legal course to take on major social issues of the day, he advocated a more conservative tack.
In one instance, he wrote a memo to the attorney general urging Smith to disregard the recommendation of William Bradford Reynolds, the head of the agency's civil rights division, that the administration should intervene on behalf of female inmates in a sex discrimination case involving job training for prisoners.
"I recommend that you do not approve intervention in this case," Roberts wrote. He said that such a step would be inconsistent with the administration's belief in judicial restraint and that, if equal treatment for male and female prisoners was required, "the end result in this time of state prison budgets may be no programs for anyone." Besides, he said, private plaintiffs were already bringing suit.
On June 15, 1982, Roberts faulted the Justice Department for the outcome in Plyler v. Doe , in which the Supreme Court overturned a Texas law that had allowed school districts to deny enrollment to children who had entered the country illegally.
Roberts argued that if the solicitor general's office had taken a position in the case supporting the state of Texas "and the values of judicial restraint," it could have "altered the outcome of the case."
"In sum, this is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have," Roberts wrote.
Much of Roberts's time at the Justice Department was taken up by the debate over GOP-sponsored bills in Congress that would have stripped the Supreme Court of its jurisdiction over abortion, busing and school prayer cases. He wrote repeatedly in opposition to the view, advanced by then-Assistant Attorney General Theodore B. Olson, that the bills were unconstitutional. He scrawled "NO!" in the margins of an April 12, 1982, note Olson sent to Smith. In the memo, Olson observed that opposing the bills would "be perceived as a courageous and highly principled position, especially in the press."
Roberts drew a bracket around the paragraph, underlined the words "especially in the press," and wrote in the margin: "Real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises and Brinks!"
The three appear to be to Harvard Law School professor Laurence H. Tribe, New York Times columnist Anthony Lewis and then-American Bar Association President David R. Brink, who opposed the bills.
Roberts added skeptical margin notes again when Olson wrote that the bills were unnecessary because the court now had more Republican-appointed members than it had in the 1960s, and was moving to the right as a result.
Roberts underlined the name of one of the Republican appointees Olson listed, Justice Harry A. Blackmun, the author of Roe v. Wade , and drew an arrow connecting it to the word "abortion."
Later, then-counselor to the attorney general Kenneth W. Starr asked Roberts to prepare a memo that "marshals arguments in favor of Congress' power to control" the Supreme Court's jurisdiction. Roberts noted as a result that his memo "was prepared from a standpoint of advocacy of congressional power . . . [and] does not purport to be an objective review of the issue."
Roberts approvingly cited comments by "Professor Scalia" -- then-University of Chicago law professor Antonin Scalia -- at a conference on the bills. Scalia "recognized that non-uniformity in the interpretation of federal law could be criticized as 'sloppy,' but asked: compared to what? Given the choice between non-uniformity and the uniform imposition of the judicial excesses embodied in Roe v. Wade, Scalia was prepared to choose the former alternative."
Roberts also took issue with the view that bills restricting the court's jurisdiction would be unconstitutional because they interfere with "fundamental rights." "None of the pending bills concerning jurisdiction in abortion or school prayer cases directly burden the exercise of any fundamental rights," he wrote.
The department eventually adopted Olson's view.
In 1982, Roberts urged the attorney general not to back a Department of Education investigation of alleged sex discrimination in athletics at the University of Richmond.
Previously, the Carter administration had sided with the Education Department, arguing that Title IX gave the federal government wide authority over all programs at a federally funded university, whether the specific program received federal money or not.
But Roberts agreed with Reynolds's decision for the civil rights division not to appeal a contrary ruling by a district judge, arguing that "under Title IX, federal investigators cannot rummage willy-nilly through institutions, but can go only as far as the federal funds can go."
"The women's groups pressuring us to appeal would have regulatory agencies usurp power denied them by Congress to achieve an anti-discrimination goal. Under your leadership the Department is committed to opposing such legislation by the bureaucracy and that commitment should continue in this case," Roberts wrote.
In 1981, outgoing U.S. Commission on Civil Rights Chairman Arthur Flemming wrote a report lauding the accomplishments of affirmative action. That document landed on Roberts's desk for a critique. He derided what he called the "perfectly circular" arguments in favor of affirmative action, as well as Flemming's contention that any affirmative action failures are caused not by inherent flaws but instead by sabotage.
"There is no recognition of the obvious reason for failure: the affirmative action program required the recruiting of inadequately prepared candidates," Roberts wrote. As a postscript, he added: "I have drafted an innocuous reply to Chairman Flemming. The report is attached, although I do not recommend reading it."
In September 1982, Roberts played the role of diplomatic coach, advising Smith on how to handle an upcoming meeting with Coretta Scott King, the widow of the slain civil rights leader. The Carter administration's Justice Department had supplied a $250,000 grant to the Atlanta-based King Center for Non-violent Social Change, to teach conflict resolution in the hopes of reducing violent crime.
The grant, approved in 1980, had run out and the Reagan administration planned not to renew it. Roberts, in a Sept. 16, 1982, memo, called the program "very poorly run" and said that it had only received funding because of "political ties" between King and Homer Broome Jr., a black Justice Department official. But rather than share those concerns bluntly with King, Roberts advised, Smith should instead tell her "there is simply no money available for additional funding," and "indicate support for the activities of the King Center, and even pleasure that the Justice Department was able to be of assistance in advancing" its goals.
The trusted role Roberts played at the Justice Department was evident from his first day on the job when he began helping prepare Sandra Day O'Connor for her nomination to the Supreme Court. Roberts has now been nominated to succeed her.
In a memo, he outlined a plan for O'Connor not unlike the one now being undertaken on his behalf: "The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the Court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."
Staff writer Charles Lane and researcher Jill Bartscht contributed to this report.