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Memos reveal Roberts' strong advocacy for judicial restraint

WASHINGTON—At the dawn of the Reagan revolution, when conservatives were just beginning to flex their muscles on a wide range of issues, John G. Roberts was a confident young lawyer with well-developed thoughts about—and the power to influence—the course of change.

Newly released memos from the Supreme Court nominee's time as special assistant to Attorney General William French Smith in 1981-82 show that even then, Roberts was an ardent advocate for judicial restraint. He believed deeply, even as a 26-year-old fresh from a Supreme Court clerkship, in the idea of leaving most federal decisions to the elected branches of government.

The memos make clear that Roberts' positions would carry policy implications, and suggest how conservative his ideal government might be:

_Roberts would have kept the courts largely out of ordering busing to desegregate schools, other desegregation efforts and civil rights enforcement.

_He would've had the courts back off from reviewing criminal sentences and stay out of issues such as school prayer.

_He encouraged re-examining the "unprincipled jurisprudence" of Roe v. Wade, the landmark 1973 Supreme Court ruling that legalized abortion nationwide.

Carried to its logical political conclusions, Roberts' view of a highly restrained judiciary would result in a federal government that's more neutral in guarding individual and civil rights and stays out of many other controversies over how life is lived in the United States.

Asked to evaluate what the memos reveal about Roberts, a sampling of liberal and conservative legal experts said Wednesday that they hadn't yet seen them and were reluctant to draw specific conclusions. But they agreed that Roberts' model of judicial restraint generally would yield conservative policy results if his views prevailed on the Supreme Court.

Roberts' writings on civil rights issues drew a rebuke Wednesday from one member of the Senate Judiciary Committee, Sen. Edward Kennedy, D-Mass.

"John Roberts was a political appointee who had a hand in shaping policy at a time (when) the Reagan administration was engaged in an aggressive assault on civil rights," Kennedy said.

White House spokesman Scott McClellan emphasized that the memos were more than 20 years old. "I think what those files show is a young White House staffer helping to provide legal analysis in support of President Reagan's agenda," McClellan said.

White House spokesman Scott McClellan emphasized that the memos were more than 20 years old. "I think what those files show is a young White House staffer helping to provide legal analysis in support of President Reagan's agenda," McClellan said.

The memos cover Roberts' earliest work in the executive branch, just after his Supreme Court clerkship to William Rehnquist but before his stunningly successful 1990s-era private practice and past two years as a federal appellate judge.

The National Archives in College Park, Md., released six boxes containing some 12,000 pages Tuesday afternoon.

The Ronald Reagan Presidential Library in Simi Valley, Calif., is releasing papers from Roberts' 1983-86 tenure in the Reagan White House counsel's office, but the White House says it won't release papers from Roberts' 1989-92 service as deputy solicitor general.

Roberts' confidence—bordering sometimes on cockiness—is evident in memos that contradict higher-ranking officials and seek to steer the administration in more conservative directions. The tone is at times in stark contrast to the manner that people now attribute to Roberts, who's roundly described as modest and self-effacing.

In the 1981-82 memos, Roberts touches on many controversies of that time, always framing conservative outcomes in the context of limiting judicial authority.

He defended as constitutional legislation that would restrict federal courts' ability to order busing to desegregate schools.

"(W)e do not believe busing is necessary to provide the equal educational opportunity mandated by Brown," Roberts wrote, referring to the landmark desegregation case Brown vs. Board of Education.

Seemingly unfazed at taking on senior Justice Department lawyers, Roberts argued against intervening in a sex-discrimination case in Kentucky's state prison system that dealt with disparities in vocational programs for male and female inmates. That put him at odds with the head of the department's civil rights division.

In a memo to the attorney general, Roberts said intervening "is inconsistent with two of the three themes in your judicial restraint effort."

Roberts also argued against appealing in a Title IX case involving the University of Richmond's women's sports program and whether the school's acceptance of federal money meant it had to make information public about its sports programs.

"Under Title IX federal investigators cannot rummage willy-nilly through institutions but can only go as far as the federal funds go," he wrote in the Aug. 31, 1982, memo.

Roberts dismissed as "judicial activism" a lower court's ruling requiring a school board to provide a hearing-impaired student with a sign-language interpreter in addition to the tutor and hearing aid already being provided.

The memos show that in addition to legal analysis, Roberts assisted in preparing Smith's speeches, wrote journalistic opinion articles and handled interest groups during his time at the Justice Department.

On Feb. 16, 1982, Roberts wrote of preparing material for a speech by Smith to conservative groups and scanning several conservative magazines to determine what criticisms they had about the department. One critique centered on the screening and appointment of federal judges who weren't on board with Reagan's social agenda.

"It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decision process—i.e., as long as they believe in judicial restraint," Roberts wrote.

A recurring theme in Roberts' memos is whether Congress can rein in the jurisdiction of the Supreme Court.

At the request of Kenneth Starr, then a counselor to the attorney general, Roberts authored a lengthy memo arguing that Congress does have the power to rein in the high court. But he asserted in the memo that it was an advocacy document, not an objective review.

When Assistant Attorney General Theodore Olson came to a different conclusion, Roberts picked at his arguments with handwritten notes in the margins.

When Olson suggested that opposing limits on the Supreme Court's authority would play well with the news media, Roberts wrote:

"Real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises and Brinks." The jab referred to liberal Harvard law professor Lawrence Tribe, former New York Times legal columnist Anthony Lewis and David Brink, then-president of the American Bar Association.


(c) 2005, Knight Ridder/Tribune Information Services.

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