Washington – As a lawyer in the Reagan White House, John Roberts wrote that legislation to strip the Supreme Court of jurisdiction over cases involving voluntary school prayer amounted to “bad policy and should be opposed,” even though it was constitutional.
The position put him at odds with some officials in the conservative administration, as Roberts – now seeking confirmation to the high court – noted in the memo that surfaced Wednesday.
The one-page paper, dated May 6, 1985, offers at least a glimpse into Roberts’ views on interpreting the Constitution as well as on the balance of power between the courts and Congress.
President Bush nominated Roberts to replace Sandra Day O’Connor on the high court. The single-page memo is one among thousands from his extensive career as a lawyer in two Republican administrations.
Roberts advocated a limited Supreme Court role on controversial issues in the 1980s such as death-penalty appeals, according to documents released Tuesday, and flashed impatience with what he referred to as “judicial activism.”
He was critical, for example, of a system that he said offered convicts several avenues of challenging their sentences in both state and federal courts. The availability of federal court appeals, “particularly for state prisoners, goes far to making a mockery of the entire criminal-justice system,” Roberts wrote in a Nov. 12, 1981, memorandum.
A July 7, 1982, memo concerned a case involving a demand for a school district to supply a sign-language interpreter “for a hearing-impaired child who was an excellent lip reader.” The lower courts ruled in favor of the child “in an exercise of judicial activism,” Roberts noted. The Supreme Court reversed the ruling, Roberts added with evident satisfaction before taking a swipe at “the activist duo Justices (William) Brennan and (Thurgood) Marshall,” who dissented.
In material evidently prepared for Attorney General William French Smith, Roberts wrote disparagingly in late 1981 of cases in which the courts had established rights not specifically defined in the Constitution.
The case he cited involved a “fundamental right to travel” and related to a residency requirement for welfare recipients.
Democrats drew attention to the reference to question whether Roberts might also apply the same logic to the right to privacy or the right to an abortion. Neither right is specifically mentioned in the Constitution.
