John Roberts: The Nominee

By William L. Taylor

THE NEW YORK REVIEW OF BOOKS, Volume 52, Number 15, October 6, 2005

 http://www.nybooks.com/articles/18291

The most intriguing question about John Roberts is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages. It is a question of great relevance to Roberts's candidacy for the Supreme Court. As the late Charles Black has written, no serious person is under the illusion that "a judge's judicial work is not influenced...by his sense, sharp or vague, of where justice lies in respect to the great issues of his time."

After a privileged upbringing in an Indiana suburb, attendance at an exclusive, expensive private school, high ranking at the undergraduate and law schools of Harvard, and clerkships with Federal Appeals Judge Henry Friendly and Supreme Court Justice William Rehnquist, John Roberts took a job in the Reagan administration. There he joined in its efforts to dismantle the civil rights gains of the 1960s and 1970s. His work as a young man in the 1980s established the pattern of his later public career.

Roberts was first employed in 1981 and 1982 as a special assistant to the attorney general, William French Smith. He went from there to the Reagan White House in November 1982, where he served as associate counsel to the President for three and a half years. During this period, Roberts played an important part in the administration's efforts to curtail the rights of African-Americans, to deny assistance to children with disabilities, and to prevent redress for women and girls who had suffered sex discrimination. He also justified attempts by the state of Texas to cut off opportunities for the children of poor Latino aliens to obtain an education. Roberts was in favor of limiting the progress of African-Americans in participating in the political process and of making far-reaching changes in the constitutional role of the courts in protecting rights.

In all of these efforts, which halted temporarily when Roberts left government for private practice in 1986, he was no mere functionary. Indeed, he often was prepared to go beyond his conservative superiors in the Reagan administration in mounting a counter-revolution in civil rights, expressing frustration with his conservative superior at the Justice Department, Theodore Olson, differing on a key constitutional issue with Robert Bork, and disagreeing on voting rights with Senator Strom Thurmond.

Court Stripping

The issue that has had the most far-reaching implications for civil rights was given the unilluminating name "court stripping." It was part of the continuing legal struggle over enforcing the Supreme Court's landmark decision in Brown v. Board of Education to end mandated racial segregation in public schools. Efforts to implement Brown had stalled until 1964, when Congress passed the Civil Rights Act, which declared school desegregation to be national policy and provided the means for enforcing it. There followed Supreme Court decisions adding legal content to the act, which then led to widespread desegregation of public schools throughout the South.

In 1980, segregationists in Congress led by Senator Jesse Helms responded with bills to prohibit the Justice Department from bringing action in the courts to desegregate schools, and to bar the courts from issuing remedies that would require the busing of students for that purpose. Similar bills were proposed in cases involving school prayer and abortion rights.

A fierce debate followed at the Justice Department and in the Reagan White House. Some lawyers recognized that a great deal was at stake in these bills-that they were an assault on the Supreme Court's role as the final arbiter of what the Constitution means as well as an assault on the separation of powers. David Brink, then president of the American Bar Association, described the court-stripping bills as "a legislative threat to our nation that may lead to the most serious constitutional crisis since our great Civil War," and the ABA House of Delegates "strongly objected" to the bills because they "propose to change the constitutional law by simple legislation, instead of by the means provided in the constitution."

In addition, the Conference of Chief Justices of the States resolved unanimously that court-stripping bills were a "hazardous experiment with the vulnerable fabric of the nation's judicial system." Within the Department of Justice Theodore Olson, then Roberts's superior and a lawyer with impeccable conservative credentials, worried about the advisability of supporting the legislation. Other constitutional conservatives, such as Yale Law School professor Alex Bickel (an ardent opponent of busing), and moderate Republicans, such as former Attorney General Elliot Richardson, as well as Robert Bork (who was to become a model of extreme legal conservatism), expressed concern publicly about the constitutionality and wisdom of court stripping. John Roberts had no such reservations. In memos deriding Brink and others, he claimed that Congress had the power to eradicate busing as a "failed experiment."

Roberts believed he had lost the internal debate with Olson even though Attorney General William French Smith testified in 1982 that while Congress could not interfere with the "core powers" of the Supreme Court, it could establish limits to the remedies approved by the courts. Smith's distinction failed to recognize that the bill's authors were proposing to abolish what in many cases would be the only effective judicial remedy for unlawful segregation. And in the end, it was a near thing. In his most substantial legal writing on the subject, an undated twenty-seven-page memo, Roberts conceded that the equal protection clause of the Fourteenth Amendment could pose a formidable barrier to legislation intended to strip the federal courts of jurisdiction over cases involving school desegregation. But, he noted, the problem might be surmounted, since strict scrutiny would be applied only if there were "racial classification," and the legislation in question would only classify cases by type, i.e., not "race" but "school desegregation." Giving state courts the final say over school desegregation, he added, would not involve unequal treatment because white officials as well as black groups would lack the right to appeal. He did not suggest how likely he thought it would be for a state court to rule against the segregation practices of, say, Governor George Wallace.

Although the Senate passed the Helms-Johnston amendment to ban the use of busing to achieve desegregation, the House did not. Roberts did not give up easily, however. As late as 1984, from his office in the White House, he wrote his boss, Fred Fielding, a memo reiterating his views that Congress could legally bar the use of busing as a school desegregation remedy. But he concluded that given his lack of success "it would probably not be fruitful to reopen the issue at this point." Still, Roberts wavered on whether a ban on busing was good policy. In his 1984 memo to Fielding he wrote approvingly that the Department of Justice as a "matter of legislative policy" regularly argued in the courts that busing was "counter-productive." But later, in another memo to Fielding in 1985, Roberts, while repeating his position that stripping the Supreme Court of jurisdiction over school desegregation was constitutional, said that he had thought banning busing was a bad "policy idea."

Voting Rights

In his views on court stripping, Roberts revealed a striking lack of interest in contemporary events. He adopted the unsupported finding that Helms and the Dixiecrats had placed in the voting rights bill, which held that busing as a desegregation remedy was a failure and led to white flight. He omitted to mention the fact that desegregation had spread throughout the South after the Supreme Court's landmark 1971 "busing" decision in the Swann case, and that the first major report by the National Assessment for Educational Progress showed that the achievement gap between whites and African-Americans had been cut in half during the 1970s, with the greatest gains coming among third-grade black children, most of whom were bused in the now desegregated Southeast.

But it was in the second major civil rights battle of the early Reagan administration that Roberts, winner of an undergraduate history award at Harvard College, revealed a surprising ignorance of America's racial past. The issue in 1981 was whether Congress should renew key provisions of the Voting Rights Act of 1965 and overturn a 1980 Supreme Court decision that threatened to undermine the gains that African-Americans were making in securing their right to vote.

The history of discrimination was unambiguous. Despite the guarantees of the Fifteenth Amendment, from the end of Reconstruction in the late nineteenth century through the early 1960s the states of the Old Confederacy kept black people from registering to vote by a variety of strategies. As the Supreme Court struck down one device after another for disenfranchis-ing blacks as violating the Fifteenth Amendment, states replaced them with others, finally resorting to primaries limited to white people. These practices were reinforced by racial violence. Many local black leaders who were organizing people to vote were murdered by members of the Klan.

The barriers were largely effective. In Mississippi in 1960, fewer than 6 percent of eligible black citizens were registered to vote. After federal laws protecting blacks' voting rights in 1957 and 1960 proved too weak to be effective, the civil rights movements of the 1960s helped to produce the Voting Rights Act of 1965. The new law contained special provisions allowing federal officials to take over the registration process if local officials continued to resist, and it called for a federal review of state laws that might limit black voting.

The 1965 Voting Rights Act brought about large gains in registration and voting by African-Americans. But they were still struggling with strategies designed to dilute the impact of their voting. This problem was compounded in 1980 by the Supreme Court's 5 to 4 decision, in Mobile v. Bolden, which upheld the election of members at large of the Mobile, Alabama, City Council rather than by district, even though it effectively prevented black voters from having representation on the council. Because blacks were entirely barred from voting in 1911, when Mobile had enacted the at-large plan, the Court reasoned that the plan had not been motivated by race. The current impact on race, the Court decided, was not sufficient to show a violation. Since the special provisions of the 1965 act were up for renewal in Congress in 1982, civil rights advocates were seeking a reversal of the Supreme Court's Mobile decision as well.

In the House in 1981 Republicans such as Henry Hyde of Illinois expressed their skepticism not only of the need to extend the special provisions of the Voting Rights Act, but of reversing Mobile v. Bolden as well. Meanwhile the Reagan administration equivocated, with the Justice Department apparently split. Documents show that John Roberts was one of the leading lawyers in the Justice Department fighting against any improvements in the Voting Rights Act. But something unexpected happened. As Henry Hyde listened to the testimony of black witnesses from the South who were suffering discrimination, he decided that something had to be done. At the end of July 1981, the House Judiciary Committee sent to the floor a strong bill for debate, including a reversal of Mobile, by a 25-1 vote. In October, with the help of other conservatives, the bill passed the House by a vote of 389-24.

John Roberts, who had joined the Justice Department in August and begun working on voting rights, did not share the views of these House Republicans. In November, Attorney General Smith argued against the House bill to extend the Voting Rights Act. When it was reported that the President would be announcing his readiness to sign the bill, Smith went to the White House and succeeded in talking Reagan out of his position. He then testified in the Senate in January that the administration did not support the bills.

While civil rights groups worked with Bob Dole to produce a draft that was essentially the same as the bill the House had passed, Roberts prepared a lengthy memo for Attorney General Smith to give to the President. It read that the bill's

effects test would likely lead to federal courts throughout the nation striking down any electoral system that is not neatly tailored to achieve proportional representation along racial lines. In other words, the effects test in the Act could lead to a quota system in electoral politics.

Throughout April, Roberts continued his campaign. He drafted a letter that was sent to Senator Strom Thurmond urging his support for striking down the House bill. On June 18, the Senate passed the bill by a vote of 85-8, with Thurmond joining the majority. Ten days later, Ronald Reagan signed the bill into law.

Nowhere in any of the memos that have been made available did John Roberts acknowledge the effect of the many years of disenfranchisement on black citizens. Instead his concern was about the effect of an imagined quota system on whites, a concern that twenty-five years later has proved to be groundless.

Roberts and the Poor

The indifference of John Roberts to people dealt a bad hand has not been limited to African-Americans. In 1982, the Supreme Court in Doe v. Plyler addressed the constitutionality of a Texas law that denied a free public education to school-age children who were not legally in the United States. The US did not participate in the case, in part because the argument did not include the claim that the statute could be considered an effort by Texas to help the federal government enforce its policy against illegal immigration. A divided court upheld the lower court rulings that struck down the Texas law. Justice Brennan wrote for the majority:

The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our nation.

The Court found that the Texas law did not further any substantial goal of the state. In a memorandum to the attorney general, written shortly after the decision was announced, Roberts lamented that the dissenters had not won the vote of Justice Lewis Powell. If the Justice Department had joined the Texas case, Roberts said, its arguments in favor of judicial restraint might have persuaded Powell and altered the outcome of the case. "This is a case," he said, "in which our supposed litigation program to encourage judicial restraint did not get off the ground and should have."

Roberts had also made clear his disagreement with Shapiro v. Thompson, a Supreme Court decision which struck down state residency requirements for welfare benefits, on the grounds that he was unable to find any right to travel in the Constitution. Presumably, he would have upheld a California law barring the entry of indigent Okies from the Dust Bowl, which the Supreme Court had invalidated in 1941 as an invasion of the constitutionally protected interest in allowing migration from state to state.

Limiting the Potential of People with Disabilities

In 1982, during what appears to have been an extremely busy year, Roberts turned his attention to the claims of students with disabilities under the Education for All Handicapped Children Act. Amy Rowley was a deaf student with minimal residual hearing, who got by in school by virtue of excellent lip-reading skills and an FM hearing aid. Lower federal courts, finding that there was a considerable disparity between her achievement (which was described as about average) and her potential, held that under the act she was entitled to the classroom services of a sign-language interpreter. Reagan's solicitor general, Rex Lee, supported their view. Justice Rehnquist, writing for a divided Supreme Court in Board of Education v. Rowley, reversed that decision, holding that all Miss Rowley was entitled to was an adequate education. The statute, he said, did not clearly require that "states maximize the potential of handicapped children commensurate with the opportunity provided to other children." Justice White in dissent pointed to provisions in the law supporting the guarantee of a "free and appropriate education," including the act's definition of special education as "specifically designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child."

After the decision, John Roberts wrote to Attorney General Smith expressing his disagreement with the solicitor general's office for supporting Ms. Rowley's claim in the Supreme Court. He described the statute as "vague, mandating only a 'free appropriate education.'" He referred to Justices Brennan and Marshall as "the activist duo" who used the government's brief to support "an activist role for the courts," adding that it took a conservative majority of the Supreme Court to turn back an "effort by activist lower court judges...."

Several things are worth mentioning about this memo. Roberts calls the disability statute vague, while previously, in supporting the court-stripping legislation, he was willing to describe busing in sweeping and inaccurate terms as a "failed experiment." He did not take on the nuanced questions that faced the Court in the Rowley case. How does one balance the value of translators in improving a deaf student's skills against their potentially high costs? On what basis does one conclude that a disabled student is entitled to aid to help her reach an arbitrary level of proficiency but no more? Roberts deflects all of this, and tends to rely on labels. The word "activist" appears three times in two sentences.

Women and Discrimination

Roberts's campaign against remedies for sex discrimination also began in 1982. The issue was how to interpret Title IX of the Education Amendment of 1972, which had become invaluable for fighting sex discrimination on America's college campuses. The basic precept of Title IX was the same as that of Title VI of the 1964 Civil Rights Act, which barred federal agencies from subsidizing racial discrimination. John Kennedy had stated the rationale eloquently:

Simple justice requires that public funds to which all races contribute not be spent in any fashion which encourages, subsidizes or results in racial discrimination.

Title VI had been indispensable in providing the legal instrument for dismantling racial segregation in schools, colleges, and hospitals. So, too, when Title IX was adopted it gave hope to women denied faculty positions because of their gender, for example, and offered new opportunities to girls and women in athletics.

Pragmatists in Congress and in the executive branch recognized that there was no practical way to limit the impact of federal funds to the particular departments or offices that received those funds. Money was fungible and to the extent that discrimination existed anywhere in an institution, federal funds could facilitate that discrimination. So for years federal administrators treated the entire public university or school system as the recipient of the federal funds. These could be withdrawn if discrimination against women was shown. When after years of wide acceptance a lower federal court rejected that view in 1982, John Roberts urged that the decision not be appealed. "Under Title IX federal investigations cannot rummage wily-nily [sic] through institutions," Roberts wrote to Attorney General Smith,

but can only go so far as the federal funds go.... The women's groups pressuring us to appeal would have regulatory agencies usurp power denied to them by Congress to achieve an anti-discrimination goal.

Roberts's view ultimately prevailed in the Supreme Court in Grove City v. Bell (1984). But Senator Ted Kennedy and other Democratic and Republican leaders, startled by the decision's crabbed interpretation of civil rights law, reinstituted the broader construction with the Civil Rights Restoration Act of 1988, which had the effect of increasing the powers of the government to penalize discrimination against women. Roberts was not done, however, with initiatives to limit redress for victims of sex discrimination and returned to the issue when he joined the solicitor general's office.

The Solicitor General Years

After three and a half years in private practice, Roberts returned to the federal government in 1989 as principal deputy solicitor general, under Kenneth Starr. In this new capacity, while he supported civil rights claims in one case before the court, arguing that desegregation obligations be strengthened at colleges and universities in Mississippi, his work was mostly a resumption of his campaign against extending remedies for civil rights violations.

Damages for Sexual Harassment

In 1991 a case involving a student's claim against a school district for its failure to prevent or redress her having been sexually harassed by one of its teachers reached the Supreme Court. The question was whether the student should have a right to recover compensatory damages for the violation of Title IX. The federal government argued that although the statute created an implied right of action for victims of discrimination to sue, there could be no implied right to recover damages.

The solicitor general's brief, signed by Roberts and others, said that although the United States was not a party in the case, it had a strong "interest in assuring that private remedies do not unduly interfere with...programs [funded by Title IX]." Of course, Title IX was designed specifically to "interfere" with such programs if they involved discrimination.

A unanimous Court, including Justices Scalia and Thomas, upheld the student's claim. Roberts was thus defeated for the second time in his efforts to limit protections against instances of sex discrimination that were federally subsidized, the first time by Congress and then by a unanimous Court.

Ending School Desegregation Decrees

Roberts had better luck in two efforts to persuade the Supreme Court to allow school districts to bring to an end their obligations under Brown v. Board of Education to establish and maintain desegregated school systems. In a case from Oklahoma City, Solicitor General Starr, while acknowledging the Supreme Court's previous ruling that school segregation practices had helped produce racially segregated housing, suggested that the relationship was too tenuous to justify continued court supervision. In the second case, involving DeKalb County, a suburb of Atlanta, the question was whether a school district could be freed from its obligations piecemeal, that is, if it complied with some but not all of the elements of a desegregation decree. The solicitor general's brief answered affirmatively, following Roberts's previous approach that it was possible to consider civil rights violations individually. In both cases, a divided Supreme Court agreed with the solicitor general. Thus the school district could satisfy its obligation to hire both black and white teachers but could be released from that obligation even if the school district was not fully desegregated.

Justice Thurgood Marshall said in dissent that the desegregation order should not be lifted "so long as conditions likely to inflict the stigmatic injury in Brown I persist and there remain feasible methods of eliminating such conditions." Nowhere in the government's brief is there a recognition of these conditions-of the isolation, humiliation, and denial of opportunity that segregation inflicted or the need to take practical steps to remedy them.

Some have said that Roberts's views expressed in government briefs during his time in the solicitor general's office should not be held against him because he was "just a lawyer representing a client." While that view may be persuasive when it involves lawyers who were civil servants in that office and were bound to follow government policy if they wanted to hold on to their jobs, it is unconvincing in the case of John Roberts. He held the number two position in the office-principal deputy solicitor, popularly known as the "political deputy." He was a policy maker, not a policy follower.

There is another reason why Roberts should be held accountable for his actions in the solicitor general's office. That office, while part of the executive branch, has a unique responsibility to guide the Supreme Court to the "right" result in cases before them (a responsibility that has led some to dub the office "the tenth justice"). At least three times in the past, solicitors general have refused to participate in cases where they believed the policies they were directed to follow by the administration were wrong. That was not a dilemma faced by John Roberts. Indeed in several civil rights cases his briefs were merely extensions of policies he had advocated in his previous stints at the Justice Department and the White House. Indeed, in the unlikely event that Roberts had changed his mind on a policy, and the expressed views in the case were dictated by Solicitor General Starr, Roberts could simply have refrained from signing the briefs.

The record made by John Roberts in his decade of public service clearly documents his single-minded focus on limiting legal protections and opportunities for African-Americans, Latinos, alien children, people with disabilities, women, and others. How is one to account for his hostility to civil rights?

"Judicial restraint," the usual explanation conservatives give for opposing court decisions that expand rights or remedies, is a phrase rarely used by Roberts except when he makes a favorable passing reference to it in his memos. One will search in vain in his writings for a thoughtful discussion of the kind Justice Felix Frankfurter frequently engaged in, seeking to balance the need for restraint against assertions of important interests and rights. The omission is particularly glaring since Roberts has supported the actions of the Supreme Court in striking down acts of Congress that provided remedies for violence against women, and that barred the sale of handguns near public schools as exceeding congressional power under the commerce clause.

Worse still, if Roberts believed in the need for the protection of civil and constitutional rights but thought the courts were the wrong place to argue for them, he was in a position that enabled him to urge new legislative measures in Congress. But Roberts opposed a law that would prevent the dilution of newly won minority voting rights. And his record is bare of any other constructive suggestions to protect those rights. Indeed, in a brief opposing policies of the Federal Communications Commission to increase minority ownership of radio and broadcast stations, Roberts and his colleagues in the solicitor general's office said Congress could mandate such policies only if it met rigorous standards in setting forth the facts to justify the policies. This was not an issue that troubled him when he was arguing for court-stripping bills. While the solicitor general's brief did not find an adequate congressional basis for appealing the FCC policies, a divided Court did.

Nowhere is there a statement of the values that animate Roberts's apparent belief that government should play only the most limited part in helping or protecting people. From the record we have,[*] we can only conclude that there is not a large space in his thinking for Madison's concerns about the dangers of dominant majorities or the concerns in the Bill of Rights for the rights of minorities to speak, assemble, and practice their religion.

It is doubtful that Justice Roberts will be guided by Justice Harlan Stone's famous footnote in the Carolene Products case:

Prejudice against discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes to be ordinarily relied upon to protect minorities and which may call for a correspondingly more searching judiciary inquiry.

It is possible of course to articulate a very different kind of vision of this country-one in which everyone fends for himself and government is limited to defending citizens against foreign enemies and crime. But that is not the vision contained in our founding documents or in our history over the past seventy-five years. To articulate such a vision, Roberts would have to find a persuasive response to an observation that Congressman Don Edwards made to Roberts's comrade-in-arms William Bradford Reynolds at a hearing in 1981:

You and I are white male attorneys. We come from families with some money and were educated in the right schools. Unless we behaved very stupidly, the family and institutional support systems guaranteed a place for us. We benefited from a racial spoils system.

One suspects that Roberts will avoid this portrayal during his confirmation hearings. But the question remains whether he can do so convincingly. Senator Arlen Specter said before the nomination that "it would be useful... to have somebody...who's been out in the world and has a more varied background" than just that of a career lawyer or jurist. Of course, there have been previous nominees who have led a fairly cloistered life and then turned out to be judges powerfully in touch with the world. Justice David Souter comes to mind.

David Broder noted of Judge Roberts, "You can search his record in vain for examples of his sensitivity to the impact of the law on people's lives." There can be no doubt that in the hearings Roberts will be a good advocate for himself as he has been for others. But in the end it is the record that counts, and the record is damning.

Notes

[*] The record on the other side is almost bare. It consists of his handling of a few pro bono cases, one of them involving public assistance benefits that had been denied in the District of Columbia. He also participated in a preparatory session and gave other advice to help lawyers arguing for recognition of gay rights in the Supreme Court.