Sifting Old, New Writings For Roberts's Philosophy

What follows is a selection from what Roberts has written on some key social and legal issues based mainly on the Reagan-era documents. More recent records, from his tenure as a Justice Department official during the administration of George H.W. Bush, have been withheld from release by the department, and his short tenure on the appellate court has yet to produce a lengthy list of opinions.

Access to the Courts

A key aim of the Reagan legal team, in seeking to limit the courts' perceived intrusions, was to restrict the number and type of cases that could reach a judge. Roberts and his colleagues spoke of curtailing "justiciability" and "standing" -- the standing to sue -- because they believed too many people were bringing lawsuits that resulted in judgments on matters best left to popularly elected legislatures.

Conservatives chafed in particular at what they regarded as two judicial trends: a recognition that individuals could sue for redress of harms even if they had not been personally and deliberately victimized; and a declaration by the courts that individuals in historically disadvantaged groups -- such as blacks or women -- had enhanced standing to bring suit for equal protection under the 14th Amendment.

Roberts supported this criticism in a note to Smith on Nov. 25, 1981, urging Smith to tell reporters that although "certain parts of the Justice Department previously followed a policy of not raising standing challenges in the most vigorous fashion . . . it will be our policy to raise standing and other justiciability challenges to the fullest extent possible."

Two years later, Roberts reaffirmed his support for the critique in a memo to his boss, White House counsel Fred F. Fielding, in which Roberts noted that "abuse" of a section of federal law giving rise to suits against state-run institutions "really has become the most serious federal court problem." He also advised that it would be "impolitic to touch the provision" -- a move that would have had the effect of inhibiting lawsuits over civil rights violations -- "until after 1984," when Reagan was to run for reelection.

A decade later, in 1993, Roberts again brought up the issue in a law review article supporting a Supreme Court decision that barred a lawsuit by the Washington-based Defenders of Wildlife to enforce the Endangered Species Act. Roberts liked the court's ruling that members of the group had no standing to sue because they could not prove personal harm, which he said affirmed that the judiciary cannot conduct oversight "at the behest of any John Q. Public who happens to be interested."

Civil Rights

Roberts and his colleagues came into office asserting that the civil rights policies of prior administrations -- including affirmative action programs that set hiring quotas for minorities and women or mandated school busing for integration -- discriminated unfairly against whites, wrongly burdened employers to judge workers on factors other than merit, or simply did not work.

The touchstone of the Reagan administration's civil rights policy, Roberts wrote to Fielding in May 1984, was a "belief that it is constitutionally impermissible to grant preferential treatment solely on the basis of race to those who have not been proven to be victims of illegal discrimination." He and others read the equal protection amendment as barring what they saw as reverse discrimination.

Roberts's conviction that merit alone should determine hiring and firing decisions underpinned his oft-stated opposition at the time to programs requiring that a percentage of government contracts be set aside for women and minorities as a way to remedy persistent economic discrimination.

Roberts expressed the same views as recently as 1995, when he lauded a Supreme Court case that found a set-aside program improper and imposed a tougher test for affirmative action programs. What was wrong with the program was that "the lowest bidder didn't get the contract, not because somebody else had a better product, but because of the race of the owner of another company," he told PBS's "MacNeil/Lehrer NewsHour" on June 12 that year. "You don't overcome racism by engaging in it yourself."

Like many conservatives, Roberts was not a supporter of the Equal Rights Amendment, which the House of Representatives failed to pass by a required two-thirds majority in 1983. But Roberts's opposition to a Reagan endorsement of it that year was couched mostly in political terms: "The President would be perceived as crassly opportunistic, and would risk losing the devotion of some of his most loyal supporters," he said in a memo to Fielding.

Later, as a private attorney at Hogan & Hartson in the mid-1990s, Roberts argued at least once in favor of affirmative action on behalf of a paying client. And, to some conservatives' dismay, he offered a few hours of free coaching to lawyers for gay rights activists that led to a 1996 landmark Supreme Court ruling that protects people from discrimination based on their sexual orientation.