Roberts's papers: Congress tops High Court

As a young lawyer serving in the Reagan Administration in the 1980s, US Supreme Court nominee John Roberts was not in a position to decide important matters of policy.

His role as special assistant to the attorney general, and later as an associate White House counsel, was to research issues, offer recommendations, draft memos, and then pass his work on.

So it is not too surprising that no "smoking guns" that might jeopardize his nomination have yet been discovered amid the 51,285 recently released documents concerning Mr. Roberts's work at the White House and Justice Department.

But the papers are nonetheless helping flesh out a more complete portrait of Roberts's early career from 1981 to 1986. Perhaps more important, they are laying the groundwork for what could become an intense interrogation when his confirmation hearings begin Sept. 6.

What the archives broadly reveal is an individual who was consistently conservative. Memos and other public documents show that Roberts:

• Believed the Constitution empowers Congress to strip the US Supreme Court of jurisdiction in controversial areas such as desegregation, school prayer, and abortion. (Though he also wrote that any congressional effort to do so would be "bad policy.")

• Was a strong advocate for presidential power, ranging from the commander in chief's ability to wage war without interference from Congress, to the president's authority to make recess appointments in in the face of congressional opposition.

• Consistently adopted narrow interpretations of civil rights and voting rights.

• Generally favored law enforcement over the rights of criminal defendants.

• Believed silent prayer in public schools did not necessarily violate the First Amendment's establishment clause.

At a broader level, the Roberts documents reveal a lawyer who seemed confident and comfortable operating at the heart of the Reagan revolution. Ronald Reagan's was not a status quo administration. Conservative change was the order of the day.

Perhaps the most significant uncovered documents relate to his detailed examination of the court-stripping issue. It came at the request of Kenneth Starr, then counselor to the attorney general, whose request in 1981 came when Roberts was working at the Justice Department. He was 26 years old at the time.

Such court-stripping proposals have long been introduced in Congress by those objecting to what they say are liberal activist judges legislating from the bench. At the time of Roberts's review, there were 20 such bills pending.

The review was requested to help the Reagan administration decide whether to support any of the pending bills. The administration ultimately rejected Roberts's conclusion and declared that court-stripping bills are unconstitutional.

Although Roberts's review took place nearly a quarter century ago, it remains important to the extent that it now highlights a prospective Supreme Court justice's possible approach to constitutional interpretation. In reaching the conclusion that the Constitution empowers Congress to take such action, Roberts relied heavily on the actual text of the Constitution. Article III, Section 2 says Congress can make "exceptions" to the Supreme Court's jurisdiction. In Roberts's view the Constitution means what it says.

"The Framers were not inartful draftsmen," Roberts wrote in his 27-page analysis of the issue. "We are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning."

Opponents of such court-stripping say it would undermine the core function of the judiciary as an independent and equal branch of government.

Another objection is that Congressional limitations would undercut national uniformity in the interpretation of federal law. For example, if Congress barred the Supreme Court from taking up abortion cases, it would suddenly be up to the 50 states individually to decide to what extent abortions should be regulated or not.

Some conservative legal scholars say such diversity is consistent with the system of federalism established by the founders and that divisive social issues are best left to the states to resolve, rather than imposing a one-size-fits-all national solution. In his 1981 analysis, Roberts quotes a then little-known University of Chicago law professor who saw nothing wrong with nonuniformity and diversity on such issues among the states. The professor: Antonin Scalia.

"Given the choice between non-uniformity and the uniform imposition of the judicial excesses embodied in [the abortion precedent] Roe v. Wade, Scalia was prepared to choose the former alternative," Roberts writes. Although Justice Department policy makers ultimately rejected Scalia's (and Roberts's) analysis, that rejection apparently did not hurt Scalia's standing within the Reagan administration. Within a year, Scalia was named to the federal appeals court in Washington, D.C. And in 1986 he was elevated to the High Court.

Roberts will probably be closely questioned by senators on his court-stripping views and how those views might relate to his broader approach to constitutional interpretation. It won't be enough for Roberts to repeat his earlier view that court-stripping would be bad policy. As a Supreme Court justice, conservatives say, Roberts should be bound by a sworn oath to uphold the Constitution itself rather than follow his policy preferences.

Court-stripping appears to be gaining ground as a tactic. Although no bills aimed at reversing a particular controversial Supreme Court decision have yet become law, at least three laws passed since the mid-1990s have imposed limits on the courts. They involve death penalty appeals, immigration cases, and efforts to improve prison conditions.

In addition, last year, the House passed a measure blocking all federal courts from hearing same-sex marriage cases. And the House passed the Pledge Protection Act, which sought to prevent the federal courts from hearing any claim challenging the words, "under God," in the Pledge of Allegiance. The vote was 247-173. Both measures failed to advance in the Senate.

School prayer is another issue likely to attract Senate interest during confirmation hearings. Memos suggest Roberts disagrees with a June 1985 Supreme Court decision striking down an Alabama silent-prayer law. The high court's ruling "seems indefensible," he wrote.

But perhaps more interesting than Roberts's apparent view that silent prayer does not offend the First Amendment's establishment clause is his analysis of what might have happened behind the scenes at the Supreme Court.

Roberts wrote a two-page memo to White House Counsel Fred Fielding on the same day the June 1985 decision was handed down. In it, he speculates that the justices had originally voted to uphold the silent prayer law, but that Justice William Rehnquist had lost his majority.

Roberts had been a Rehnquist clerk at the High Court four years earlier. Justice Rehnquist, he wrote, would never write a 24-page dissent. The structure and tone of the dissent suggested that it was first drafted as a majority opinion, he added. Rehnquist probably had five votes to uphold the Alabama statute but overreached in crafting his majority opinion by attempting to rewrite the test the high court uses to evaluate such establishment clause questions, Roberts wrote. Justice Sandra Day O'Connor was apparently unwilling to go that far, and once she switched sides, so did Justice Lewis Powell, according to the Roberts analysis.

"Rehnquist took a tenuous five-person majority and tried to revolutionize establishment clause jurisprudence, and ended up losing the majority," he wrote.

Even so, the effort was not necessarily misguided, he adds. "In the larger scheme of things what is important is not whether this [Alabama] law is upheld or struck down, but what test is applied."

This last sentence suggests how a Justice Roberts might approach such a case. Rather than following Justice O' Connor's cautious, case-by-case approach, it suggests Roberts would be likely to embrace the more strategic and longer-range tactics of his former boss, Justice Rehnquist.