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U.S. Supreme Court

Roberts' writings reveal confidence, strong opinions

The Supreme Court nominee's documents show an incisive, witty and erudite mind - and a sarcastic streak.

Associated Press
Published August 21, 2005


WASHINGTON - The John Roberts of nearly a quarter-century ago was a loyal foot soldier in the Reagan Revolution, a conservative lawyer with strong views on the Constitution and a penchant for stating them provocatively.

His self-confidence was striking.

A few months after turning 30, Roberts wrote that senior Justice Department officials, in rejecting his earlier advice on a subject, had decided the Constitution "did not mean what it said."

As a young lawyer, the man President Bush has picked for the Supreme Court scoured documents that crossed his desk for their legal implications - and for stray commas.

He once wrote an entire memo in French.

In one paper for his boss, he mentioned that he routinely worked until 10:30 at night.

He joked when a $25 ticket was dismissed that the hearing examiner's "learning and insight are wasted at Traffic Court."

He offered political as well as legal advice to the president he served. A proposed sculpture of Reagan would be the "epitome of conceit and majesty, hardly the image we want to portray," he wrote in 1983.

Roberts' writing - incisive, often witty and erudite - sometimes had a sarcastic streak.

"It is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off," he wrote in 1983.

The picture of Roberts, now 50 and a federal appeals court judge, emerges from nearly 50,000 pages of Reagan-era records released ahead of confirmation hearings set to begin in the Senate on Sept. 6.

The material covers Roberts' time as a special assistant to Attorney General William French Smith from 1981-1982 and his tenure as a lawyer in the White House counsel's office from 1982-1986.

To Republicans, the documents say one thing. To Democrats, it's something else.

"The truth is, Judge Roberts is a mainstream nominee, and extremely well-qualified, despite the efforts by some to mischaracterize him," Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee, said recently.

Sen. Patrick Leahy of Vermont, who will lead the Democratic questioning of Roberts at the committee hearings, said the material shows a man who was an "eager, aggressive advocate" for policies of the Republican far-right wing.

Democrats have sought the release of at least some of the records from Roberts' time as principal deputy solicitor general in the administration of the first President Bush. So far, the White House has declined to release them.

In filling out a lengthy questionnaire as part of his confirmation proceedings, Roberts wrote that judges "do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law."

Whatever the papers released so far might say of how Roberts would rule if confirmed to replace retiring Justice Sandra Day O'Connor, they are laced with expressions of his personal views.

"I am institutionally disposed against adopting a limited reading of a statute conferring power on the president," he wrote in one memo.

His opinion was that Congress had the constitutional power to strip the high court of jurisdiction over school prayer. But he said it was "bad policy and should be opposed."

In a 1982 memo to Smith, he wrote, "It really should not matter what the personal ideology of our (judicial) appointees may be, so long as they recognize that their ideology should have no role in the decisional process."

Woe to anyone he deemed guilty of transgressing.

Supreme Court Justices William Brennan and Thurgood Marshall were an "activist duo," he wrote when they dissented in one case.

A former clerk to Justice William H. Rehnquist, Roberts criticized and analyzed the high court by turns.

It "seems indefensible," he wrote in 1985 of the idea that the Constitution prohibits a moment of silent reflection or even silent prayer, even though that is how the court had ruled.

In the same case, he concluded on the basis of an unusually long dissent that Rehnquist had started out writing a majority opinion permitting voluntary prayer, then lost votes after circulating his views and wound up on the losing side.

Roberts' occasional references to political issues, often expressed almost in passing, underscored his conservatism.

He referred in a 1985 memo to the "abortion tragedy."

A legal brief he helped write while working in the first Bush administration said that Roe vs. Wade, the landmark abortion case, had been wrongly decided and "should be overruled."

Asked about that during his 2003 confirmation hearing for the appeals court, Roberts said the 1973 ruling was "the settled law of the land."

In 1981, Roberts wrote that a system that gave some state prisoners access to federal appeals "goes far to making a mockery of the entire criminal justice system." Later, he chided the Supreme Court for being too willing to hear multiple appeals from death row inmates.

He wrote in 1983 of the "perceived problem of gender discrimination" and criticized many state efforts to attack it.

The theory of comparable worth was "staggeringly pernicious," he wrote. A proposed Equal Rights Amendment would "override the prerogatives of the states and vest the federal judiciary with broader powers."

At the Justice Department, he wrote that legislation to overturn a Supreme Court ruling, as advocated by many Democrats, would "radically expand the civil rights laws to areas never before considered covered." He recommended against supporting it.

Where he differed with the administration he served, he said so.

"I will be ever alert" to defend a policy that opposes a national ID program, he wrote.

Roberts showed a lawyer's caution reminiscent of the motto "Trust But Verify" that Reagan often cited in dealing with the Soviet Union on arms control.

When it was suggested that the president send a letter to the Irish ambassador on stationery bearing the letterhead "An Teach Ban" - Gaelic for The White House - Roberts said he had no objection. But he wanted the translation checked carefully.

"For all I know it means "Free the IRA,"' he wrote.

[Last modified August 21, 2005, 00:51:14]


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