The White House this week began releasing papers written by a young John Roberts during his service as an assistant to former Attorney General William French Smith and as a White House associate counsel to former President Ronald Reagan. The papers reveal Roberts to be a very conservative ideologue prepared to take radical steps in furtherance of his political beliefs. As Advance Indiana first reported on Tuesday, June 19, 2005 in a story entitled, "Roberts Is As Conservative As You Can Get: Not Good For Gay Civil Rights", Roberts friends who know him best described him as being very conservative and likely to support overturning landmark liberal decisions such as Roe v. Wade. They were right.
Perhaps the most disturbing of his writings revealed to date was his strong advocacy for legislation to strip the Supreme Court of jurisdiction over hot-button issues such as abortion, busing and school prayer. Yes, Roberts believed that the Supreme Court had no business involving itself in issues involving fundamental constitutional rights such as privacy, the Establishment Clause and equal treatment under the law. As the Washington Post reported, Roberts "wrote repeatedly in opposition to the view, advanced by then-Assistant Attorney General Theodore B. Olson, [also a conservative] that the bills were unconstitutional." According to the Washington Post report, "[Olson] scrawled "NO!" in the margins of an April 12, 1982, note Olson sent to Smith. In the memo, Olson observed that opposing the bills would "be perceived as a courageous and highly principled position, especially in the press." A defiant Roberts would not back down from his position. Roberts boldly drew a bracket around the paragraph, underlined the words "especially in the press," and wrote in the margin: "Real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises and Brinks!"
According to the Washington Post, Roberts' derisive reference to the "Tribes, Lewises and Brinks" was Harvard Law School professor Laurence H. Tribe, New York Times columnist Anthony Lewis and then-American Bar Association President David R. Brink, all of whom opposed the bills. The story reported that "Roberts added skeptical margin notes again when Olson wrote that the bills were unnecessary because the court now had more Republican-appointed members than it had in the 1960s, and was moving to the right as a result." Roberts underlined the name of one of the Republican appointees Olson listed, Justice Harry A. Blackmun, the author of Roe v. Wade , and drew an arrow connecting it to the word "abortion" according to the story.
In support of his position, Roberts cited none other than then Chicago Law Professor Antonin Scalia who spoke approvingly of the bills at a conference (perhaps of the Federalist Society). According to Roberts, Scalia "recognized that non-uniformity in the interpretation of federal law could be criticized as 'sloppy,' but asked: compared to what? Given the choice between non-uniformity and the uniform imposition of the judicial excesses embodied in Roe v. Wade, Scalia was prepared to choose the former alternative." In his most shocking position, Roberts took issue with the view that the bills restricting the Court's jurisdiction violated the separation of powers between the executive and judicial branches. Roberts said, ""None of the pending bills concerning jurisdiction in abortion or school prayer cases directly burden the exercise of any fundamental rights". Fortunately, the Reagan Department of Justice rejected Roberts' radical views and adopted the views of his more fair-minded conservative superior, Ted Olson.
David Rosenbaum reported in the New York Times today a similar analysis of Roberts' ideology as that of the Washington Post's. Rosenbaum wrote, "On almost every issue he dealt with where there were basically two sides, one more conservative than the other, the documents from the National Archives and the Ronald Reagan Presidential Library show that Roberts, now on the federal court of appeals for the District of Columbia, advocated the more conservative course". Rosenbaum added, "In some instances, he took positions even more conservative than his prominent superiors."
Judge Roberts writings in these earlier documents should not be taken lightly. Writings of Chief Justice William Rehnquist prior to his ascension to the Supreme Court evidenced an open hostility towards civil rights matters. Those writings proved to be prophetic after he joined the Court. Ruth Bader Ginsburg made no secret of the fact that she felt that a woman's right to an abortion was a fundamental right during her confirmation hearings before the Senate. There were no surprises after she took her seat. By comparison, Justice Clarence Thomas swore to members of the Senate that he had never expressed his personal views on Roe v. Wade to anyone throughout his legal career. Yet, as soon as he became a justice, he immediately sided with the Court's most conservative members in seeking to overturn it.
The Senate must thoroughly question Roberts about his views on matters as important as "what constitutes fundamental rights under our Constitution." In particular, he should be carefully examined about his view that matters such as school prayer and abortion are not matters which would be decided by the court. To date, Roberts has maintained that the position he took in legal briefs represented the views of his clients and not his own personal views. These writing are quite a different matter. He spoke out very strongly against his own boss in advocating a very radical idea of limiting the Court's jurisdiction to decide matters involving fundamental rights which, according to Judge Roberts, are not fundamental rights at all. The American public may have a different view of Judge Roberts upon learning his radical position on this critical matter.
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