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Judges Should Have 'Limited' Role, Roberts Says

John G. Roberts Jr. said he was first interviewed as a potential nominee to the Supreme Court in April.
John G. Roberts Jr. said he was first interviewed as a potential nominee to the Supreme Court in April. (By Chip Somodevilla -- Getty Images)

The draft released from Roberts's files at the archive does not have his name on it, but a memo to Roberts from Bruce Fein, who then worked in the Justice Department, offers suggested changes on "your draft." Fein said in an interview yesterday that "my judgment is yes, that John wrote it."

A second memo, sent by Roberts to the attorney general on Dec. 11, 1981, summarized a lecture six years earlier by then- Solicitor General Erwin N. Griswold at Washington and Lee University, which touched on the same theme. Griswold's lecture, Roberts said, "devotes a section to the so-called 'right to privacy,' arguing as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade."

The words "so-called" do not appear in Griswold's lecture. But Roberts drafted a letter to Griswold, signed by Smith, saying he was cheered that Griswold made "many of the same points" that the administration had about these matters.

Two other new documents released by the Archives provide additional evidence that Roberts was skeptical of government efforts to use federal funding as leverage to enforce civil rights in schools. In one, Roberts told the attorney general he supported the repeal of rules barring schools from receiving federal funds if they had discriminatory dress codes. Then-Education Secretary T.H. Bell successfully pushed for the change, arguing that the regulation of dress codes was better left to local school officials. That, wrote Roberts in a July 1, 1982, memo, was "an eminently sound conclusion."

In a memo to the attorney general on Dec. 8, 1981, Roberts supported a proposed change in Education Department regulations, making clear that an anti-discrimination law did not apply to schools that received no direct federal aid. Roberts said that although the intent of the law's drafters was murky and the courts could conclude otherwise, "the case has not been made" that the law applies to schools "merely because" they receive indirect aid, through grants to students.

In a May 6, 1982, memo to Smith, Roberts outlined points for Smith to make during a scheduled interview with a Los Angeles Times reporter. Roberts advised Smith to stress that although the Justice Department continued to bring actions to "guard against impermissible discrimination," the average citizen is "no longer burdened by intrusive remedies which have not been proven to be effective."

As an example, Roberts wrote: "We no longer demand busing, so disruptive to the education of our children, or quotas, which have been so divisive in the workforce."

Staff writer Jo Becker contributed to this report.


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