In 1980s, Roberts Criticized The Court He Hopes to Join

More than 50,000 pages of documents, including the writings of Supreme Court nominee John G. Roberts Jr., were made public by the Ronald Reagan Presidential Library. (AP)
More than 50,000 pages of documents, including the writings of Supreme Court nominee John G. Roberts Jr., were made public by the Ronald Reagan Presidential Library. (AP) (By Charles Dharapak -- Associated Press)
By Jo Becker, R. Jeffrey Smith and Sonya Geis
Washington Post Staff Writers
Saturday, August 20, 2005

When John G. Roberts Jr. accepted President Bush's nomination to the Supreme Court last month, he spoke with awe about the high court. He had argued 39 cases before the justices, but he said he "always got a lump in my throat whenever I walked up those marble steps."

Two decades earlier though, as a young lawyer in the Reagan administration, Roberts expressed less reverential comments, repeatedly arguing that the high court was interfering in issues best left to Congress. He even wrote approvingly of an effort to term-limit federal judges instead of giving them lifetime appointments, so they "would not lose all touch with reality through decades of ivory tower existence.

"The federal judiciary today benefits from an insulation from political pressure even as it usurps the role of the political branches," he wrote his boss, White House counsel Fred F. Fielding, on Oct. 3, 1983.

The memo was among more than 50,000 pages of documents made public this week by the Ronald W. Reagan Presidential Library, covering Roberts's 1982 to 1986 tenure as an associate counsel to the president. Along with other papers covering Roberts's 1981 to 1982 stint as a special assistant at the Justice Department, the documents portray a young conservative whose views were very much in line with the administration he served.

Roberts's writings reflect a steady concern about maintaining an appropriate balance of power, often expressing suspicion that one branch of government was trying to encroach upon another. Much of his trepidation involved his view that the courts were encroaching on issues that Congress never intended with overly broad interpretations of federal law, or by creating rights not stated in the Constitution. That, in turn, informed his views on a host of controversial issues.

He was skeptical of the Supreme Court's legal underpinning for the right to abortion, referring to it as a "so-called right to privacy." He said that a case prohibiting a moment of silent prayer or reflection in public schools "seems indefensible," and criticized other court decisions upholding racial preference programs aimed at remedying past discrimination as "constitutionally impermissible" because the programs themselves were discriminatory.

That strict view also carried over to the executive branch. Asked by White House deputy counsel Richard Hauser to come up with examples of instances when the administration had refused to interpret statutes more broadly than Congress intended, Roberts cited a case involving Bob Jones University. Though the university discriminated against interracial couples, the administration took the position that it could continue to receive a tax break given to religious and charitable organizations.

"Even though we opposed on policy grounds granting tax exemptions to discriminatory schools, we did not feel Congress had given the IRS the authority to withhold exemptions on that basis," Roberts wrote Dec. 5, 1983.

Roberts wrote the memo less than six months after the Supreme Court ruled that the university did not meet the charitable test in the federal law because it discriminated.

In 1983, then-Chief Justice Warren E. Burger proposed a new level of appellate courts to relieve some of the Supreme Court's workload. Roberts panned the idea in a Feb. 10 memo, writing that "the fault lies with the Justices themselves, who unnecessarily take too many cases and issue opinions so confusing that they often do not even resolve the question presented." The court could start by agreeing to hear fewer death penalty appeals and "abdicating the role of fourth or fifth guesser," he said.

Two months later, Roberts reiterated his position.

"While some of the tales of woe emanating from the Court are enough to bring tears to the eyes, it is true that only Supreme Court Justices and school children are expected to and do take the entire summer off," Roberts wrote. But, he added, there was an upside to that break: "We know that the Constitution is safe for the summer."

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