John Roberts: In His Own Words

JEFFREY BROWN:

Ever since President Bush announced his Supreme Court nomination last month, the search has been on for clues into the mind and matter of John Roberts. Yesterday, in an unusual scene at The National Archives in Washington, the paper chase intensified as boxes filled with documents from Roberts' tenure as a lawyer in the Reagan White House were released to the public.

In all this week, some 50,000 pages of his writings have become available, and our Supreme Court watcher, Jan Crawford Greenburg of the Chicago Tribune, has read every single one of them. Not really.

JAN CRAWFORD GREENBURG:

Well, not every one.

JEFFREY BROWN:

Not quite. Okay. First some context on these writings. Who was John Roberts when he was writing them?

JAN CRAWFORD GREENBURG:

The documents that we saw this week were from his period of service in the White House Counsel's Office, from 1982 to 1986, when he worked for a lawyer in the Reagan — for President Reagan in the White House counsel's office.

JEFFREY BROWN:

So a young man writing.

JAN CRAWFORD GREENBURG:

In his late 20s.

JEFFREY BROWN:

Okay. Now, before we look at some of the particulars, does some broad portrait of him emerge from this period?

JAN CRAWFORD GREENBURG:

Oh, absolutely, and this is kind of a pattern that we've seen in some of the earlier documents. Keep in mind that we've seen earlier documents when he was a lawyer in the Justice Department, coming out of a clerkship for then-Justice William Rehnquist, when he worked as a special assistant to Attorney General William French Smith.

Those documents and the documents that we saw this week from the White House Counsel's Office show John Roberts as a young, incredibly smart, witty, conservative lawyer who carefully and cautiously defended the positions of the conservative Reagan administration.

JEFFREY BROWN:

We have a graphic from the resignation letter he wrote in which he says, "As a lawyer, it was a source of great satisfaciton to serve a president who appreciated the framers' vision of a limited federal government of laws, not men." Classic formulation of conservative legal theory.

JAN CRAWFORD GREENBURG:

And that letter from April of 1986 is quite stirring in his words. He says to the president that our nation is stronger, more prosperous and freer because of the things that President Reagan did and that the fires will burn brightly in his heart long after he's left the lights of the White House behind.

JEFFREY BROWN:

Now, one area that received a lot of attention yesterday and today concerns his writings about women's rights and gender discrimination issues. Before we look at some of the things he said, set that up. This was at a time of great debate on equal rights amendment.

JAN CRAWFORD GREENBURG:

Sure, the early 1980s. That was a very hot time for women's rights. There was a lot of controversy because of the Equal Rights Amendment. President Carter had gotten more women votes than President Reagan did in the 1980 election. So President Reagan was under a lot of pressure to address women's issues and women's rights. And so some of the memos and writings that we've seen from John Roberts were comments on proposals or initiatives, things that the states had been considering, some of which were begun during the years of the Carter administration.

JEFFREY BROWN:

So let's look at a couple of the phrases he used. One was – he wrote it in terms of "perceived problems of gender discrimination." And in another he was referring to a law that California has: "California has passed a staggeringly pernicious law codifying the anti-capitalist idea of 'comparable worth' pay scales."

JAN CRAWFORD GREENBURG:

Now, that was from a memo when he was looking at some of these state proposals in terms of women's rights and women's initiatives. And the way they were going to address these — this lawyerly language, these perceived problems of gender discrimination. The California effort that he talks about involved a very controversial notion, the notion of comparable worth. That was in vogue during the years of the Carter administration, supported by the head of the EEOC during the Carter administration —

JEFFREY BROWN:

And it's often confusing to people. It's not the same as equal pay.

JAN CRAWFORD GREENBURG:

No, it is not. It is paying men and women in different jobs the same, if those jobs are of equal value or considered equal value to society. For example, the example that is often used, a woman who's working in laundry versus the man who might be the truck driver, different jobs, but perhaps should be paid the same because they're of comparable worth to society.

John Roberts was quite critical of a judge in Washington State, in some of these memos that upheld the notion of comparable worth. He said it was pernicious and radical. And the federal appeals court agreed. They swiftly reversed that ruling and today Roberts' supporters note that it is almost inconceivable to think of federal judges stepping in and setting these wages for men and women in different jobs.

JEFFREY BROWN:

And one more, very provocative quote that got pulled out in a lot of places on the same issue, in which Mr. Roberts asked, "whether encouraging homemakers to become lawyers contributes to the common good." Now, this, I saw, was read in radically different ways.

JAN CRAWFORD GREENBURG:

That's right. Now, this came from a contest, and a government lawyer was going to be nominated for this award because she had been a teacher and had gone on to law school and become a lawyer and was encouraging other teachers and homemakers to kind of follow that career path.

So in a memo saying that it was okay for this government lawyer to be nominated for this award, Roberts made those comments. One would question whether that's a good thing. Now, this was seen very differently. Roberts' supporters said that's clear that's a lawyer joke; he's saying why do we need more lawyers, you know? Let's have physicists —

JEFFREY BROWN:

Of all things, we don't need –

JAN CRAWFORD GREENBURG:

Do we really want to encourage people to go to law school? So that was to Roberts' supporters obviously a lawyer joke. They couldn't imagine that anyone would see it any other way. But critics of John Roberts said no, this is John Roberts expressing hostility toward women, and they pointed to other language that we've seen to bolster their view that that was not a joke, and it, frankly, to them was not very funny.

JEFFREY BROWN:

All right. Some other issues, some other key areas, especially ones that are very relevant now because of retiring Justice Sandra Day O'Connor has played an important role. One would be school prayer.

JAN CRAWFORD GREENBURG:

Right.

JEFFREY BROWN:

In 1985 John Roberts wrote in a memo: "any suggestion that Constitution prohibits such a moment of silent reflection – or even silent 'prayer' – seems indefensible."

JAN CRAWFORD GREENBURG:

Right, he's referring to a 1985 Supreme Court decision in which the Justices struck down a moment of silence coming out of Alabama, the Alabama school system, because there, the court said, Alabama legislators were trying to inject prayer into schools. Roberts was very critical of that decision.

He wrote a couple of memos about that decision and said he thought the history there would show that the Supreme Court might at some point allow a moment of silence if it was just for quiet reflection. And in fact, the Supreme Court appears to have done just that. In 2001, it refused to take up a Virginia statute that authorized a moment of silence that didn't have any of that legislative history that Alabama had had in 1985.

JEFFREY BROWN:

Another thing, of course, much watched is the subject of abortion. Now, earlier this week, there was a memo put out, that referred to — I think it was a speech that President Reagan at the time was going to give?

JAN CRAWFORD GREENBURG:

That was an issue — there were about 16,000 fetuses had been discovered in a medical lab in California, and an anti-abortion group in California had wanted the president to send a telegram that could be read during a memorial service. In a memo, Roberts said he saw no problem with sending that telegram because it would not be inconsistent with the president's views. President Reagan had said he believed fetuses were human beings and he saw no reason that a telegram could not be sent. And this is the words of Roberts in the memo —

JEFFREY BROWN:

Which we have. Let's put that up so our audience can see it: "The president's position is that the fetuses were human beings, or at least cannot be proven not to have been, and accordingly a memorial service would seem an entirely appropriate means of calling attention to the abortion tragedy." So that's the kind of language that President Reagan was using at the time.

JAN CRAWFORD GREENBURG:

That's right. In speeches, President Reagan had frequently referred to Roe versus Wade as a tragedy and that abortion was a tragedy. But because the Supreme Court is so closely divided now on the issue of abortion, it has voted five to four, with Justice O'Connor in that narrow five-vote majority, to strike down state restrictions on abortion.

The groups who are closely monitoring this Roberts nomination have looked for any way or any memo to discern how he might vote on abortion because with Justice O'Connor leaving the court and John Roberts potentially taking her place, his vote could make a difference in the way the court goes on some of those abortion regulations.

JEFFREY BROWN:

Now, there's all kinds of mundane matters in all those thousands and thousands of pages. There was one other thing that was interesting, was sort of ironic now that he may go to the court himself, in which he talked about term limits for Justices. We have that quote. In 1983, John Roberts said, "There is much to be said for changing life tenure to a term of years without the possibility of reappointment. The framers adopted life tenure at a time when people simply did not live as long as they do now."

JAN CRAWFORD GREENBURG:

That's right.

JEFFREY BROWN:

He was talking about a perhaps 15-year tenure.

JAN CRAWFORD GREENBURG:

Fifteen-year time of service. He notes that the Justice Department had opposed that, but he didn't necessarily think that it was such a bad idea because, you know, the Justices can tend and judges can tend to lose all touch with reality when they've had a long time in that ivory tower. And he thought it was not a bad thing to have more turnover among federal judges.

JEFFREY BROWN:

There are Democrats now and outside groups who are calling for more documents to be released, specifically from when he was the deputy solicitor general. What's the state of play with that?

JAN CRAWFORD GREENBURG:

A coalition of civil rights group and women's rights group led by a public interest group, Alliance for Justice, held a press conference today urging the White House to release more documents, as you said, from Roberts' tenure when he was a lawyer in the Justice Department arguing in the Supreme Court on behalf of the administration.

Democratic senators, Ted Kennedy, has urged the White House to release these documents. The White House has taken a very strong position on this that it sees those documents as privileged. It is said and referred to memos in the past when all living solicitor generals, Republican and Democrat, have said the White House should not release those documents because they fear it could compromise frank advice that they would be getting from their lawyers in the Solicitor General's Office.

JEFFREY BROWN:

All right, Jan Crawford Greenberg, we'll keep reading what we have and look to see if there's more. Thanks a lot.

JAN CRAWFORD GREENBURG:

You're welcome.