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

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."

Roberts's view of the proper separation of powers led him, while serving in the Justice Department, to take a position that Congress had the right to keep federal courts from ordering busing to achieve public school desegregation. He also wrote that Congress had the authority to strip the Supreme Court of the power to hear certain types of cases involving such matters as public school prayer and abortion.

But Roberts was also concerned about Congress overreaching in areas involving presidential prerogatives. A farm bill moving through Congress in 1983 would have created a "special assistant to the president for agricultural trade and food aid." In a Dec. 13 memo, he called it "an unprecedented attempt by the Congress to structure the office of the president."

Similarly, Roberts objected to a bill that would have given special benefits to veterans who had served in Lebanon between Aug. 20, 1982, and "the date the operation ends," set either by the president or "concurrent resolution of Congress." Whatever the bill's merits, Roberts said it "improperly recognizes a role for Congress in terminating the Lebanon operation," a role that he said is reserved for the president.

Protecting the executive's powers is a chief responsibility of White House lawyers such as Roberts. But much of his time was taken by more mundane duties.

He had to research matters such as proper use of the presidential seal. He also tackled issues that came in over the transom such as a parody postcard depicting Nancy Reagan snorting cocaine. "My own view continues to be that objecting to such distasteful parodies does little good," he wrote, after double-checking with experts that the substance in question must be cocaine because heroin is rarely snorted.

On a more substantive level, Roberts protected the president from the administration's own rhetoric, reviewing the texts of many of Reagan's speeches for political, as well as legal, problems.

On April 25, 1985, Roberts advised that in a reference in an upcoming presidential radio address to " 'banana republics' strikes me as extremely impolitic at the present time."

He also cautioned that rhetorical flourishes in another radio address on the budget were going overboard. In the text, Reagan planned to say that "innocent people" will "suffer" if the debt ceiling were not raised. Roberts called Reagan's remarks "very ominous and dramatic," and said, "I think the President will sound ludicrous if he tries to paint this financial crisis as American's darkest hour."

And when the president planned to say that the United States was "the greatest nation God ever created," Roberts relied on the Book of Genesis. Citing the Bible, Roberts wrote in an Oct. 11, 1984, memo, that "God creates things like the heavens and the earth, and the birds and the fishes, but not nations." The phrase, Roberts told Fielding, was ill-advised and "particularly in light of the focus on the religion and politics issue, a likely candidate for the 'Reaganism of the Week.' "

In an Oct. 1, 1985, memo, he warned that it would be inaccurate for Reagan to refer to Pete Rose as a " 'slugger.' Rose is a singles hitter, whose lifetime 'slugging average' of .415 is not even close to the minimum .500 required for listing" as a slugger.

On May 30, 1985, Roberts warned the speechwriters not to allude to legendary orator Daniel Webster as among those who walked through Ford's Theatre in Washington. "Senator Webster may well have been among the Americans entering the theater 'tired and worn,' " as the draft speech stated, Roberts said. "Buthe would have been a good bit more tired than the rest. He died eleven years before the theater opened."

Roberts's detailed approach to the president's affairs also applied to his own. When Fielding asked him about a traffic court appearance noted in his schedule, Roberts wrote a one-page memo, saying he was cited in an accident for the "laughable catch-all charge" of failure to devote full time and attention. Having never had a ticket in 15 years of driving, Roberts jokingly vowed to "take the matter all the way to the Supreme Court, if necessary."

Geis reported from Simi Valley, Calif. Staff writer Amy Argetsinger in Simi Valley and researchers Meg Smith and Jill Bartscht in Washington contributed to this report.

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