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U.S. Supreme Court

Meet John Roberts, in his words

The Supreme Court nominee has said little publicly, but more than 60,000 pages of writings give insight into who he is.

By BILL ADAIR
Published August 28, 2005

WASHINGTON - He wrote memos about Michael Jackson, school prayer and a Clairol scholarship.

He analyzed laws on abortion, women's rights and busing. He quibbled about whether Pete Rose could rightfully be called a "slugger" and said a prominent Christian fundamentalist should "go soak his head."

In his nine years working for President Ronald Reagan and the first President George Bush, Supreme Court nominee John G. Roberts Jr. left a long paper trail - more than 60,000 pages of letters, memos and legal opinions. The documents portray him as a loyal Reaganite, a conservative ideologue and no fan of Jackson.

Most of the documents come from Roberts' five years as a White House aide and Justice Department attorney under Reagan. The current Bush administration won't release internal memos and letters from his tenure as principal deputy solicitor general from 1989 to 1993. For that period, the only materials available are the briefs Roberts filed with the court.

Collectively, the letters and memos paint a picture of Roberts' role in the Republican presidencies of the 1980s and '90s, and they offer clues of what he might be like as a Supreme Court justice.

When he joined the Reagan administration in 1981, Roberts was a rare breed - a conservative from Harvard.

He had to be confident to survive in the sea of liberals at the Ivy League college, and his early writings as a young attorney in the White House and Justice Department are self-assured and sometimes smart-alecky. He was persistent and sometimes blunt.

In 1983, after the government revoked the tax-exempt status of Bob Jones University because of its racial policies, college president Bob Jones III wrote the Reagan administration to complain about its refusal to help a professor at another college with a visa extension. Jones said the White House "has shown itself totally insensitive to the interests of Fundamental Christians who put Mr. Reagan there."

Roberts, in a memo to White House counsel Fred Fielding, said, "The audacity of Jones' reply is truly remarkable, given the political costs this administration has incurred in promoting the interests of Fundamental Christians in general and Bob Jones University in particular. A restrained reply to his petulant paranoia is attached for your review, telling Jones, in essence, to go soak his head."

When a speech writer proposed that President Reagan say the United States was "the greatest nation God ever created," Roberts questioned whether that was fair. In a memo that cited the Bible, Roberts said "God creates things like the heavens and the earth, and the birds and the fishes, but not nations."

Roberts said calling the United States the "greatest nation" was a poor choice of words and would likely be derided as the "Reaganism of the Week."

In a 1985 memo, he said it would be inaccurate for Reagan to refer to Pete Rose as a "slugger." He said: "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.

Roberts opposed giving Jackson a presidential award for his efforts against drunken driving and was especially unhappy with a draft speech that described the singer as an "outstanding example" for American youth.

"If one wants the youth of America and the world sashaying around in garish sequined costumes, hair dripping with pomade, body shot full of female hormones to prevent voice change, mono-gloved, well, then, I suppose "Michael,' as he is affectionately known in the trade, is in fact a good example. Quite apart from the problem of appearing to endorse Jackson's androgynous life style, a presidential award would be perceived as a shallow effort by the president to share in the constant publicity surrounding Jackson. . . . The whole episode would, in my view, be demeaning to the president."

In trying to discern Roberts' views on abortion, groups have focused on a brief he co-authored that urged the Supreme Court to reverse the landmark Roe vs. Wade decision: "We continue to believe that Roe was wrongly decided and should be overruled."

Those words represented the Bush administration and were not necessarily Roberts' personal views, but his other remarks over the years suggest he opposed the Roe decision.

In a 1981 memo, Roberts referred to the "so-called "right to privacy' " that was the basis for the Roe decision. Supporters of abortion rights say the tone of that remark indicates his disdain for the privacy justification in the case.

In another 1981 memo, Roberts attacked "judicial activism," a term many conservatives use to criticize the abortion decision. He said everyone may like the idea of a right to privacy, but "that does not, however, mean that courts should discern such an abstraction in the Constitution" and use it to strike down laws.

Four years later, Roberts was asked to review a telegram from Reagan that would be sent to a memorial service for fetuses being held by a California antiabortion group. Roberts said the service was "an entirely appropriate means of calling attention to the abortion tragedy."

In 1985, Roberts was asked to review a proposed speech by Education Secretary William Bennett that said the Supreme Court's rulings against posting the Ten Commandments in public schools and other church-state cases reflected a "hostility to religion not demanded by the Constitution." Roberts wrote that he had "no quarrel with Bennett on the merits."

Another 1985 memo by Roberts endorsed a constitutional amendment permitting "individual or group silent prayer or reflection in public schools." Roberts said the Supreme Court's opposition to "silent reflection - or even silent "prayer' - seems indefensible."

Six years later, when he was in the solicitor general's office, Roberts co-authored a brief urging the Supreme Court to allow prayer at graduation ceremonies because the practice was not coercive.

"Students were not compelled to attend the ceremony," the brief said, "and those who attended were not forced to participate in any religious activity."

Roberts has generally taken a hard line against suspected criminals.

As a federal judge last year, he ruled against a 12-year-old girl who was arrested for eating a french fry in the Washington subway system. His opinion said he didn't like the outcome but that he was strictly following the law.

In a 1981 memo, he argued for restrictions of habeas corpus protections, which give accused criminals the right to challenge their imprisonment. "The current availability of federal habeas corpus, particularly for state prisoners, goes far to making a mockery of the entire criminal justice system," Roberts wrote.

He said it is rare "that the meritorious claim has anything to do with the petitioner's innocence."

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?"

When three Republican women in Congress urged the Reagan administration not to intervene in a case involving the comparable worth of female workers, Roberts scoffed at their ideas.

The three representatives wanted the administration to support better pay for women because on average they earned only 60 cents for every $1 earned by men. Roberts believed that would violate free-market principles.

"I honestly find it troubling that that three Republican representatives are so quick to embrace such a radical redistributive concept," he wrote in a 1984 memo. "Their slogan may as well be "From each according to his ability, to each according to her gender.' "

In a 1983 memo about an alternative to the Equal Rights Amendment, Roberts was skeptical of the need for such an amendment, referring to "the purported "gender gap.' "

Two years later, in a memo about the Clairol Loving Care scholarship program, he joked about a White House aide who in a previous job "encouraged many former homemakers to enter law school and become lawyers."

Roberts wrote that he thought it was okay for her to get the award, but he added this aside: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

Opponents of Roberts say that wisecrack indicates he was insensitive toward women. Supporters say he was just making a lawyer joke.

Information from the Washington Post, the Boston Globe and the New York Times was included in this report. Washington bureau chief Bill Adair can be reached at adair@sptimes.com or 202 463-0575.

[Last modified August 28, 2005, 01:15:11]