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."

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.

Criminal Law

Criminal cases fill the Supreme Court docket. Virtually every death sentence in the nation comes before the court on appeals and habeas corpus challenges claiming constitutional violations. This fall, the court will hear several death penalty cases, including one that asks the court to relax the high bar that defendants must now meet to present claims of innocence during appeals.

As a Justice Department lawyer in the Reagan administration, Roberts in 1981 advocated strictly limiting the ability of convicted inmates to make such claims. Criminals were clogging the court with frivolous petitions and it is rare "that the meritorious claim has anything to do with the petitioner's innocence," he wrote.

It was easier for criminals to make such petitions then than it is today. But at that time Roberts suggested that the problem was so out of control that "the question would seem to be not what tinkering is necessary in the system, but rather why have federal habeas corpus at all?"

Later, as an associate White House counsel, Roberts wrote that the Supreme Court should abdicate the "role of fourth or fifth guesser in death penalty cases" by hearing fewer appeals. He also wrote approvingly of the administration's efforts to undo Supreme Court rulings that exclude from trial improperly seized evidence, attempts that eventually failed.

Now a federal appeals court judge himself, Roberts has heard several criminal cases and has showed deference to prosecutors. In one case, for instance, he dissented from an opinion that threw out evidence from the warrantless search of a bank robber's car, writing that the car's stolen license plates and the defendant's failure to have the registration were adequate reasons for the police to open the car trunk.

Abortion

A common theme throughout Roberts's writings is his view that the courts were improperly creating rights that were not explicitly stated in the Constitution. For many conservatives, the high-water mark of such "judicial activism" was Roe v. Wade , the landmark 1973 decision that legalized abortion throughout the country.

During his 2003 confirmation hearings for the appellate court, Roberts said he considered the case a matter of "settled law." But unlike in his current role as an appeals court judge, bound to follow Supreme Court precedents, Roberts would be free to overturn them if confirmed to the high court.

In his writings as a lawyer in the Reagan administration, he expressed deep skepticism about the legal underpinnings of abortion.

In 1981, Roberts referred to the "so-called right to privacy," first found by the Supreme Court in a 1965 case involving a law that prohibited contraception. Though the Constitution does not explicitly say so, the court ruled that citizens had a right to be protected from government interference in intimate decisions. That right was later used to justify Roe v. Wade , striking down blanket abortion prohibitions. It is also cited in right-to-die cases involving patients' rights to refuse medical intervention.

In 1985, he called a proposed memorial service for aborted fetuses organized by antiabortion doctors in California "an entirely appropriate means of calling attention to the abortion tragedy." And as principal deputy solicitor general from 1989 to 1993, Roberts co-authored a brief that said Roe v. Wade should be overturned.

Religion in Public Life

Like many officials in the Reagan administration, Roberts was openly antagonistic to court rulings striking down officially sanctioned references to religion or prayer in public schools. In a memo to Fielding on Aug. 6, 1985, for example, Roberts noted that he was a clerk for Justice William H. Rehnquist when Rehnquist filed a lone dissent to a Supreme Court decision barring the posting of the Ten Commandments in public schools.

Regarding a draft speech by then-Education Secretary William J. Bennett that criticized courts for betraying "a hostility to religion not demanded by the constitution," Roberts said, "I have no quarrel with Bennett on the merits. . . . Nor am I bothered by the criticism of the Supreme Court decisions."

While working as principal deputy solicitor general, Roberts co-signed a court brief arguing that a Rhode Island middle school should be permitted to organize a brief prayer at a public school graduation ceremony.

Staff writers Amy Argetsinger and Sonya Geis in Simi Valley, Calif., and researchers Meg Smith and Karl Evanzz contributed to this article.

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