Sifting Old, New Writings For Roberts's Philosophy

By R. Jeffrey Smith and Jo Becker
Washington Post Staff Writers
Sunday, August 21, 2005

John G. Roberts Jr. was keen to correct a proposed letter for President Ronald Reagan's signature that said the federal courts have "earned and enjoyed the confidence of the American people . . . for [their] impartiality, independence, and fairness."

Then a young White House lawyer, Roberts wrote in 1983 that in reality "the federal judiciary has been viewed by the American people with active distrust from the very beginning." Other writings by Roberts from this period suggest he might just as well have added: "particularly by me."

Just 28 years old, Roberts was part of a cadre of young conservatives attracted to work in Washington with the ambition of righting what they considered to be a series of judicial errors under liberal governance that had helped set the country on a political course they didn't like.

Now President Bush's nominee to replace Sandra Day O'Connor on the Supreme Court, Roberts's past writings are being mined for signals about his philosophy and how he might rule on cases before the nation's highest court. Last week, the bulk of more than 50,000 pages of documents from Roberts's tenure in two government jobs was released. The documents, dating from 1981 to 1986, offer the most complete view of Roberts's thoughts from that period and are the deepest record available of his political and legal thinking.

A successful son of the American establishment, Roberts is a top graduate of a private midwestern boarding school and one of the nation's premier Ivy League universities and sits on the U.S. Court of Appeals for the District of Columbia Circuit. But his early political unease embraced a broad sweep of American social policy.

On topics such as civil rights, judicial procedure, criminal justice and the role of religion in public life, the papers show Roberts not only embraced the political ideals of the conservative administration for which he worked, but occasionally advocated even more conservative solutions than his colleagues.

Behind it all was a deep resentment, shared by many legal conservatives at the time, of what they regarded as the judiciary branch's intrusion into social affairs best left to politicians. On affirmative action, school busing, public school prayer and many other matters, Roberts and many others in the administration viewed the courts, particularly at the federal level, as out of step with public sentiment, at least as expressed by its majority will.

Roberts's view of a 1969 Supreme Court decision striking down state residency requirements for welfare recipients is illustrative. While working as one of Attorney General William French Smith's special assistants, he raised the case in a Nov. 25, 1981, memo to Smith, saying that the administration should embrace the position taken in the sole dissent to that opinion.

"As you might recall, Justice [John M.] Harlan wrote an incisive dissent" arguing that the court was behaving as if its "capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises." It is, Roberts wrote, "that very attitude which we are trying to resist."

The extent to which Roberts still holds the positions he did as a government lawyer is unclear. In 1985, Roberts suggested in one memo that he had shunned membership in the American Bar Association because of its "hostility to this administration," but he is a member now.

When Roberts resigned from the White House to join the Hogan & Hartson law firm in 1986, he told the president that "the inspiration that you have given me will burn brightly in my heart long after I have left." But Roberts gave a speech on Feb. 25 this year, reflecting on his experience as an appellate judge since 2003, that suggested his views may be less dogmatic now.

"I found that deciding cases was a lot harder than I thought it would be," Roberts told students at Wake Forest University, adding that he had thought that in most cases it would be obvious "that this person should lose, this person should win." But "what I've found is that I have to spend far more time than I thought I would just getting to that first step -- what the right answer should be."

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