An Advocate for the Right - New York Times

An Advocate for the Right - New York TimesJuly 28, 2005
An Advocate for the Right
By DAVID E. ROSENBAUM

WASHINGTON, July 27 - The early 1980's were a heady time for conservatives in Washington.

Ronald Reagan was president, and after years on the outside, some of the strongest voices in the conservative movement - men like Edwin Meese III, James G. Watt, William Bradford Reynolds and Theodore B. Olson - were in high positions in the government and were determined to reverse what they believed to be years of liberal policies in areas like civil rights, environmental protection, criminal law and immigration.

John G. Roberts, a young lawyer in the Justice Department in 1981 and 1982 and on the White House counsel's staff from 1982 to 1986, held positions too junior for him to set policy in those days.

But his internal memorandums, some of which have become public in recent days, reveal a philosophy every bit as conservative as that of the policy makers on the front lines of the Reagan revolution and give more definition to his image than was apparent in the first days after President Bush picked him to be an associate justice of the Supreme Court.

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 Judge Roberts, now of the United States Court of Appeals for the District of Columbia Circuit, advocated the more conservative course. Sometimes, he took positions even more conservative than those of his prominent superiors.

He favored less government enforcement of civil rights laws rather than more. He criticized court decisions that required a thick wall between church and state. He took the side of prosecutors over criminal defendants. He maintained that the role of the courts should be limited and the president's powers enhanced.

Mr. Roberts was only 26 when he joined the Reagan administration and 31 when he left. But the ideology he expressed as a young man helps explain why conservative activists seem pleased with him, even though others Mr. Bush might have picked have a more detailed public record of conservative advocacy.

Consider Mr. Roberts's stands on some of the hottest political issues of the 1980's as revealed in the newly public documents:

Busing In 1985, when he was an assistant White House counsel, Mr. Roberts took issue with Mr. Olson, an assistant attorney general at the time, on whether Congress could enact a law that outlawed busing to achieve school desegregation.

Mr. Olson, who was one of the nation's most widely known conservative lawyers on constitutional matters, was arguing that Congress's hands were tied because the Supreme Court had ruled that busing was constitutionally required in some circumstances.

Mr. Roberts wrote in a memorandum to the White House counsel, Fred F. Fielding, that Mr. Olson had misinterpreted the law. He said evidence showed that by producing white flight, busing promoted segregation. "It strikes me as more than passing strange for us to tell Congress it cannot pass a law preventing courts from ordering busing when our own Justice Department invariably urges this policy on the courts," he wrote.

Sex discrimination Mr. Roberts also challenged Mr. Reynolds, who was assistant attorney general for civil rights and another prominent conservative who outranked him.

In 1981, he urged Attorney General William French Smith to reject Mr. Reynolds's position that the department should intervene on behalf of female prisoners who were discriminated against in a job-training program. If male and female prisoners had to be treated equally, Mr. Roberts argued, "the end result in this time of state prison budgets may be no programs for anyone."

Judicial restraint Mr. Roberts consistently argued that courts should be stripped of authority over busing, school prayer and other matters. In a letter in November 1981 to Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit, in New York, for whom he had clerked and whom he considered a mentor, Mr. Roberts wrote that he and his colleagues in the administration were determined to "halt unwarranted interference" by the courts in the activities of Congress and the executive branch.

A month later, he wrote to Rex Lee, who was the solicitor general, that courts were "ill-suited to policy making because they are limited to the facts presented to them."

Court-stripping is still an issue in American politics. Last year, the House approved legislation that would prevent federal courts from ordering states to recognize same-sex marriages in other states. The measure never became law.

Presidential war powers In 1983, Arthur J. Goldberg, the former Supreme Court justice, wrote a letter to the White House questioning President Reagan's constitutional authority to send troops to Grenada without a declaration of war.

Mr. Roberts replied with a ringing endorsement of the president's power. "This has been recognized at least since the time President Jefferson sent the Marines to the shores of Tripoli," he wrote. "While there is no clear line separating what the president may do on his own and what requires a formal declaration of war, the Grenada mission seems to be clearly acceptable as an exercise of executive authority, particularly when it is recalled that neither the Korean nor Vietnamese conflicts were declared wars."

Affirmative action Mr. Roberts held that affirmative action programs were bound to fail because they required "the recruiting of inadequately prepared candidates."

"Under our view of the law," he wrote in 1981, "it is not enough to say that blacks and women have been historically discriminated against as groups and are therefore entitled to special preferences."

Immigration Mr. Roberts took strong issue with a Supreme Court decision striking down a Texas law that had allowed school districts to deny enrollment to children who were in the country illegally. The court had overreached its authority, he wrote, and the Justice Department had made a mistake by not entering the case on the state's side.

Church-state Mr. Roberts was sharply critical of the Supreme Court decision outlawing prayer in public schools, and he said the court had exceeded its authority when it allowed any citizens to challenge the transfer of public property to a parochial school.

John M. Broder contributed reporting from Simi Valley, Calif., for this article, and Jonathan D. Glater from Washington.