New documents released by the Reagan Presidential Library are helping to fill out the portrait of Supreme Court nominee John Roberts as a behind-the-scenes conservative in the Reagan Administration.
From 1982 to 1986, Roberts served as an associate counsel to President Reagan. During that time, he wrote many memos to his boss, White House counsel Fred Fielding, in which he advocated conservative views—although he also took some positions (e.g. in favor of a national ID card and a virtually limitless presidential war power) that many conservatives do not embrace. Here are excerpts from some memos.
Judicial Activism and the Court’s Workload
In 1983, Chief Justice Warren Burger proposed creating a federal appeals court, above other appellate courts, to diminish the Supreme Court’s workload. Roberts argued the court’s workload was caused by its attempt to govern all aspects of American society.
“If the justices truly think they are overworked, the cure lies close at hand. For example, giving coherence to the 4th Amendment jurisprudence by adopting the ‘good faith’ standard, and abdicating the role of fourth of fifth guesser in death penalty cases, would eliminate about a half-dozen argued cases from the court’s docket each term. So long as the court views itself as ultimately responsible for governing all aspects of our society, it will, understandably, be overworked. A new court will not solve this problem.”
—Feb. 10, 1983
The Ten Commandments
Roberts approved a speech by Education Secretary Bill Bennett criticizing a Supreme Court decision that prohibited posting the Ten Commandments in public schools.
“Bennett’s point is that such decisions betray a hostility to religion not demanded by the Constitution … I have no quarrel with Bennett on the merits.”
—Aug. 6, 1985
Congress and the War Power
“The difficulty with the attached is that it recognizes a role for Congress in terminating the Lebanon operation … I do not think we would want to concede any definitive role for Congress in terminating the Lebanon operation, even by a joint resolution presented to the President. (A veto of such a resolution could be overridden.)”
—Feb. 29, 1984
AIDS and Casual Contact
In September 1985—two months before the government approved the first test to detect HIV anti-bodies in human blood—Roberts objected to President Reagan’s assuring people the disease could not be transmitted by casual contact.
“I do not think we should have the President taking a position on a disputed issue of this sort. … I would not like to see the President reassuring the public on this point, only to find out he was wrong later. There is much to commend the view that we should assume AIDS can be transmitted through casual or routine contact, as is true with many viruses, until it is demonstrated that it cannot be.”
—Sept. 13, 1985
For National ID, Against Uncontrolled Immigration
“I yield to no one in the area of commitment to individual liberty against the specter of overreaching central authority, but view such concerns as largely symbolic so far as a national ID card is concerned. We already have, for all intents and purposes, a national identifier—the Social Security number—and making it in form what it has become in fact will not suddenly mean constitutional protections would evaporate and you could be arbitrarily stopped on the street and asked to produce it. And I think we can ill afford to cling to symbolism in the face of the real threat to our social fabric posed by uncontrolled immigration.”
—Oct. 21, 1983
Harry Blackmun and Baseball
Discussing a congressional resolution declaring “Harmon Killebrew Day,” Roberts made a sly criticism of Supreme Court Justice Harry Blackmun, the author of Roe v. Wade, who was quoted in the resolution.
“Whatever his virtues as a jurist, Blackmun is one of the greatest fans of the game.”
Kickapoos and the Mexican Border
“The Kickapoos, originally from the Great Lakes area, did not stop running from their encounter with Europeans until they reached Mexico, where they now hold 17,000 acres of land. The Kickapoos provide migrant labor in the United States, and a group of them made Newsweek by choosing to live in squalid conditions beneath the International Bridge in Eagle Pass, Tex., rather than their Mexican homeland. The bill would: 1) Require the secretary of the Interior to develop a list of Kickapoos, and grant U.S. citizenship to anyone on that list; 2) Entitle Kickapoos to cross the Mexican/U.S. border free of any restrictions. … While the approach of the bill—ad hoc exceptions to restrictions in general laws—strikes me as unfortunate, and while its provisions seem overly generous—particularly in light of the fact that these are, generally speaking, Mexican Indians and not American Indians—the bill is consistent with the administration’s recommendations.”
—Jan. 4, 1982
Deregulating TV Production
Roberts argued in favor of the Federal Communications Commission’s lifting a ban on television networks’ producing their own TV programs.
“The argument in favor of the rule is that if CBS enters the business of financing development of programs it will eventually show only CBS-financed programs, to the exclusion of independent producers. This is like arguing that permitting Giant Foods to market its own brand of peanut butter means it will not sell “Jiffy”—even if “Jiffy” is what its customers want to buy. Networks will show programs that maximize their audience share, whether produced by the network or independently. … The proposed repeal is an important deregulation initiative and I believe the administration should go on record as supporting it. Deliberately not taking a position because the matter is controversial (the suggestion of some) is a prescription for paralysis—at least where the logic of the administration’s efforts point so clearly in one direction.”
—Jan. 24, 1983
The Supreme Court’s 5-to-4 decision in Jaffree v. Wallace overturned an Alabama law mandating a moment of silence for “meditation or voluntary prayer” in public schools. Roberts seemed to approve of what he guessed was Justice Willliam Rehnquist’s failed attempt to use the case to reverse Lemon v. Kurtzman, which had placed a restrictive three-prong test on public prayer and religious expression.
“Justice Rehnquist in dissent called for abandoning the Lemon test, arguing from historical analysis that the Establishment Clause prohibited only establishing a state religion or preferring one denomination or sect at the expense of others. … (For what it’s worth, a reading of the opinion strongly suggests that the outcome of this case shifted in the writing. As I see it, Rehnquist was writing for the court…. He had five votes to uphold the statute, and tried to use the occasion to go after the bigger game of the Lemon test itself. …) O’Connor’s dissent apparently persuaded Powell to drop by the wayside as well, with a lame concurring opinion focusing on stare decisis, as if to explain why he was changing a vote. Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority. Which is not to say the effort was misguided. In the larger scheme of things what is important is not whether this law is upheld or struck down, but what test is applied.”
—June 4, 1985
After Jaffree, congressional conservatives offered a constitutional amendment to protect voluntary prayer in public schools. Roberts did not object to the administration’s supporting it, stating that Jaffree was “indefensible.”
“I expect the Justice [Department] report … to announce support for the amendment. … 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 Biden), and the conclusion in Jaffree v. Wallace that the Constitution prohibits such a moment of silent reflection—or even silent ‘prayer’—seems indefensible.”
—Nov. 11, 1985
Term Limits for Federal Judges
“Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for 25 or 30 years was a rarity then, but is becoming commonplace today.”
—Oct. 3, 1983