Supreme Court nominee John G. Roberts Jr. was asked to state his opinion on some of the most controversial legal issues of the day while serving as an associate legal counsel at the White House from 1982 to 1986 -- a period in which Reagan administration policies on a range of social issues were eliciting widespread debate.
The bulk of the documents reflecting Roberts's views in that job are to be released by the Reagan presidential library later this week, but several thousand pages disclosed Monday in response to requests from lawmakers and news media afford an unvarnished look at the private advice he gave his superiors at the time.
Following are excerpts from some illustrative documents:
Roberts's responsibilities included drafting replies for President Ronald Reagan's chief counsel, Fred F. Fielding, to send to dozens of people who requested the administration's assistance or support. His advice was typically blunt and occasionally flip. On Sept. 11, 1984, for example, he let Fielding know that:
"One Ramon L. Rivera of Los Angeles (where else?) has written you because he has learned that 'all property in the U.S. has been placed into a trust.' He asks thirty specific questions about this supposed 'trust,' ranging from how it was created, to how it has been kept secret, to whether there are age limits on participation in the trust. The attached reply . . . assures Mr. Rivera that all the property in the United States has not been placed into a trust."
Reimbursement of a Family's Legal Fees
Roberts was asked in early 1985 to help Fielding decide whether the administration should reimburse the family of a severely deformed child for legal fees incurred while successfully fending off an attempt by the Justice Department to force a hospital to operate on the child.
The so-called Baby Jane Doe case, which had pit civil rights prosecutors against family members who opposed the surgery because of the gravity of the child's deformities, attracted national publicity. While the courts repeatedly sided with the family and against the government on the surgery, the Justice Department had -- with the courts' support -- already turned down the family's request for reimbursement when the issue landed at the White House.
Then-Sen. David Durenberger (R-Minn.) was among those supporting the family. But Roberts advised Fielding in a memo on Feb. 4, 1985, that: "I see no reason to retreat from the Justice position. This Baby Doe litigation may have been ill-advised, and the courts have not thrown it out, but it was hardly 'frivolous, unreasonable, or without foundation.' " Roberts added that he opposed dispensing public money "out of a sense of 'compassion' -- the Justice Department has no right to salve its conscience (or quiet Senator Durenberger) with taxpayers' money that is not legally owed to the parents."
Roberts wrote a Nov. 21, 1985, memo to Fielding advising the White House to hold off commenting on proposed legislation to overturn a June decision by the Supreme Court, Jaffree v. Wallace, striking down an Alabama law that required a moment of silent prayer in school. The legislation would have authorized individuals or groups to pray or reflect silently at school.
Roberts argued that the Justice Department -- which had backed the Alabama law in a court pleading -- could be counted on to shoulder the burden of endorsing the legislation. But he could not resist adding his own thoughts: "I would have no objection to such a position statement. Many who do not support prayer in school support a 'moment of silence' (including Senator [Joseph R.] Biden [Jr. (D-Del.)]), and the conclusion in Jaffree v. Wallace that the Constitution prohibits such a moment of silent reflection -- or even silent 'prayer' -- seems indefensible."
The attorney general of Alabama wrote to Reagan in 1983 to complain that the administration was not pushing hard enough to solve what he saw as a federal litigation explosion. He suggested limiting the number of federal lawsuits that could be brought against state-run institutions such as mental hospitals or prisons.
Roberts expressed sympathy for the point of view in an April 28, 1983, memo to Fielding but also counseled caution in making any public comment about revising the pertinent section of federal law: Its "abuse really has become the most serious federal court problem -- but the general sense is that it is impolitic to touch the provision, which authorizes most actions for civil rights violations, until after 1984" -- when Reagan was up for reelection.
In a letter of reply Roberts drafted for Fielding's signature, he wrote: "I think you know that this administration shares your concern about the root causes of the explosion in federal litigation and that we are trying to do something about them."
In 1985, Philip Dreisbach, an official of the California Pro-Life Medical Association asked Reagan to send a telegram of support that could be read at a memorial service the antiabortion group was holding for 16,500 aborted fetuses found in plastic barrels stored behind the home of a pathology lab director.
Roberts told Fielding on Oct. 4 that he had "no objections to the President sending a message to the memorial service. The President's position is that the fetuses were human beings, or [at] least cannot be proven not to have been, and accordingly a memorial service would seem an entirely appropriate means of calling attention to the abortion tragedy. My concern is sending another message to Dreisbach, who was prepared to misuse the previous Presidential message on a gruesome anti-abortion display. I recommend approving the telegram, but making certain the recipients understand it cannot be . . . used in any future materials."
The Supreme Court's Workload
Roberts vehemently opposed the creation of a temporary court between the Court of Appeals and the Supreme Court, an idea that was being floated by Chief Justice Warren E. Burger to reduce the Supreme Court's workload. In a memo to Fielding on Feb. 10, 1983, Roberts urged instead that the court decline, for example, to hear so many death penalty appeals:
"My own view is that creation of a new tier of judicial review is a terrible idea. . . . The fault lies with the Justices . . ., who unnecessarily take too many cases and issue opinions so confusing that they often do not even resolve the question presented. If the Justices truly think they are overworked, the cure lies close at hand. . . . So long as the court views itself as ultimately responsible for governing all aspects of our society, it will, . . . be overworked. A new court will not solve this problem."
Staff writer Amy Goldstein contributed to this report.