In '80s, Roberts advocated limited court role

As lawyer under Reagan, he opposed activist judges

August 21, 2005|By Jan Crawford Greenburg | Jan Crawford Greenburg,CHICAGO TRIBUNE

WASHINGTON - As a young lawyer in the Reagan administration, John Roberts consistently advocated a more limited role for the courts, staking a classically conservative position that decisions on social policies were best left to elected legislators, not judges with lifetime tenure.

In the thousands of pages of documents released in the past month, Roberts - nominated for a seat on the Supreme Court - has emerged as a forceful defender of President Ronald Reagan and his policies, and as an advocate who carefully articulated the administration's positions on key social issues, from abortion to school prayer.

But his views of the law and of the role of the courts were most clear when he ardently argued against a proposal by then-Chief Justice Warren Burger to help ease the workload of the Supreme Court. Coupled with some of Roberts' earlier writings critical of judges who he believed were setting social policies, the documents reveal a lawyer who believed strongly that courts have a limited role in solving society's problems.

Roberts' response this month in a Senate Judiciary Committee questionnaire suggests his thinking has not changed greatly over the years: "Judges do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law."

That language, taken with his earlier positions, suggests that Roberts - like Justices Antonin Scalia and Clarence Thomas - could be inclined to read the Constitution narrowly and refuse to identify new constitutional rights beyond those specifically contained in the document. Conservatives have criticized some Supreme Court justices as too willing to create new constitutional rights - thereby removing the issues from the legislative arena and giving power to courts - in such areas as gay rights and abortion.

As a lawyer in the early 1980s in the Justice Department and later in the White House, Roberts indicated he believed that judges who reach out to decide policy questions undermine the democratic process by taking power from elected officials who are accountable to voters.

In the White House, Roberts was most blunt about the limited role of the courts when writing about Burger's proposal to create a new type of court that would review some of the cases handled by the Supreme Court. In several memos, Roberts - at odds with key high-ranking officials - said the new federal appellate court was a "terrible idea" that could give judges an even more expansive role in social debates.

Over a period of months throughout 1983, in several memos and meetings, he urged the White House to oppose the new court, a view that prevailed.

"Creating a tribunal to relieve the court of some cases - with the result that the court will have the opportunity to fill the gap with new cases - augments the power of the judicial branch, ineluctably at the expense of the executive branch," Roberts wrote in a 1983 memo to his boss, White House Counsel Fred Fielding.

Burger had pushed for the intermediate court, between the federal appeals courts and the Supreme Court, to help take pressure off the justices, who were hearing about 150 cases each year. By the spring of 1983, officials in the Justice Department had agreed to support it on a five-year, temporary basis.

But Roberts, in an April 1983 memo, called the new court "exceedingly ill-advised." He also said it was an "unprecedented infringement on the president's appointment powers," because Burger would have selected the judges to the court from the existing federal appeals courts.

Even assuming the justices have reached the limit of their capacity to decide cases, Roberts said, "those limits are a significant check preventing the court from usurping even more of the prerogatives of the other branches.

"The generally accepted notion that the court can only hear roughly 150 cases each term gives the same sense of reassurance as the adjournment of the court in July, when we know that the Constitution is safe for the summer."

In an earlier memo, Roberts said the court's heavy workload was the fault of the "justices themselves, who unnecessarily take too many cases and issue opinions so confusing that they often do not even resolve the question presented."

The idea of the new court finally died, and Congress instead eased the court's workload by eliminating some of the mandatory appeals that required the justices to hear certain types of cases.

"Here's somebody at still a young age who had a very strong institutional appreciation for the role of the Supreme Court in the federal system and worried far more maturely than some of his senior counterparts of the effect on our constitutional system," said Douglas Kmiec, a professor at Pepperdine University School of Law and a former Reagan administration official.

Roberts' correspondence revealed that he had discussed the idea at some length with one of his mentors who opposed the new court, Judge Henry Friendly of the New York-based 2nd U.S. Circuit Court of Appeals. Roberts had clerked for Friendly after graduating from Harvard Law School and before heading to Washington to clerk for then-Justice William Rehnquist on the Supreme Court.

The Chicago Tribune is a Tribune Publishing newspaper.

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