The NYT examines some of Judge Roberts files from the 80’s:
As a young lawyer in the Justice Department at the beginning of Ronald Reagan’s presidency, John G. Roberts advocated judicial restraint on the issues of the day, many of which are still topical, documents released Tuesday by the National Archives show.
He defended, for instance, the constitutionality of proposed legislation to restrict the ability of federal courts to order busing to desegregate schools.
On other civil rights issues, he encouraged a cautious approach by courts and federal agencies in enforcing laws against discrimination.
Judge Roberts, now on the federal court of appeals for the District of Columbia Circuit, also argued that Congress had the constitutional power “to divest the lower federal courts of jurisdiction over school prayer cases.”
In another memorandum, he maintained that the Supreme Court, to which he is now nominated, overreached when it denied states the authority to impose residency requirements for welfare recipients.
This was an example, he wrote, of the court’s tendency to find fundamental rights, like the right to travel between states, for which there was no explicit basis in the Constitution. “It’s that very attitude which we are trying to resist,” he wrote.
Not much to the story, overall, but this was amusing:
In several memorandums, Judge Roberts displayed a shrewd understanding of how Washington works. Responding to a letter from the American Jewish Committee in 1981, he asked a supervisor, “Is this draft response O.K. – i.e., does it succeed in saying nothing at all?”
Again, a little bit of information, but not much. The Washington Post, on the other hand, provides a much more detailed account of his past positions:
Newly released documents show that John G. Roberts Jr. was a significant backstage player in the legal policy debates of the early Reagan administration, confidently debating older Justice Department officials and supplying them with arguments and information that they used to wage a bureaucratic struggle for the president’s agenda.
Roberts presented a defense of bills in Congress that would have stripped the Supreme Court of jurisdiction over abortion, busing and school prayer cases; he argued for a narrow interpretation of Title IX, the landmark law that bars sex discrimination in intercollegiate athletic programs; and he even counseled his boss on how to tell the Rev. Martin Luther King Jr.’s widow that the administration was cutting off federal funding for the Atlanta center that bears his name…
Much of Roberts’s time at the Justice Department was taken up by the debate over GOP-sponsored bills in Congress that would have stripped the Supreme Court of its jurisdiction over abortion, busing and school prayer cases. He wrote repeatedly in opposition to the view, advanced by then-Assistant Attorney General Theodore B. Olson, that the bills were unconstitutional. He scrawled “NO!” in the margins of an April 12, 1982, note Olson sent to Smith. In the memo, Olson observed that opposing the bills would “be perceived as a courageous and highly principled position, especially in the press.”
Roberts drew a bracket around the paragraph, underlined the words “especially in the press,” and wrote in the margin: “Real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises and Brinks!”
The record is slowly being built…
Geek, Esq.
He’s Robert Bork without a paper trail or fugly goatee. Any Democrat who votes for this guy ought to face a primary challenge.
Conservatives are right to be thrilled with him. Any conservative that doesn’t like him is clinically insane.
John Cole
Thanks Geek- post updated. Try to embed your links from now on, pls.
Geek, Esq.
I’ll try. How does one embed a link?
/Luddite
Geek, Esq.
Never mind.
How embarrassing.
Steve
It’s obvious that Congress can remove the jurisdiction of the lower federal courts over particular subject areas; what’s less obvious is whether they can remove the jurisdiction of the Supreme Court as well. There’s a school of thought that says they can’t do both; otherwise, every statute passed by Congress could just include a clause saying “no federal court shall have jurisdiction to review the constitutionality of this law,” and bang, all Constitutional limitations on the power of the federal government instantly vanish!
By the same token, there is an argument out there that if Congress thinks the Ninth Circuit is too liberal, for example, it can pass a law abolishing the Ninth Circuit altogether, then the next day pass a law reconstituting the Ninth Circuit, and bang, Bush gets to appoint all new judges. While there is technically nothing in the Constitution that prohibits this, let’s just say it’s a pretty extreme position to advocate. Likewise, the arguments that Congress can remove all federal court jurisdiction over particular subject matters are dressed up in lots of supporting legalisms, but ultimately, it’s a scary position to assert.
If Roberts truly thinks the Constitution should be read to say that Congress can decide which of its statutes can be reviewed for constitutionality, let’s hope his position has “evolved” a bit since 1982. You can believe that the Supreme Court sometimes goes too far without believing Marbury v. Madison was incorrectly decided.
Al Maviva
So let me see… he told Ted Olson to read the Constitution as it’s written, rather than reading it in such a way as to curry favor with the Washington elites?
This is nuts. We’re buying a judge with this here nominations process. It’s costing us a lot of money. If we don’t get our money’s worth, i.e. a guy in our hip pocket, then I don’t want him. Send him back, and get me a guy who is reliably right wing, rather than some guy who relies on the plain text of the constitution. Since it’s a living, breathing, growing constitution, the words only mean what the judges say they mean – none of us can know the objective meaning of the text. So I would rather have a judge who rules in my favor, screw what the text says. That this guy told Olson to stick to the plain language of the text and risk political disapproval, is an embarrassment. That black letter stuff isn’t worth the paper it’s printed on.
Well, that settles it for me. That sonovabitch needs to be kept as far from the courts as possible. Get me a conservative legal mind in here now, rather than a legal conservative mind.
I think Ann Coulter and I are on the same page here.
Sojourner
Wonderful. Next step: get rid of the Constitution and Bill of Rights entirely.
Geek, Esq.
Has Roberts shown himself to be anything other than reliably rightwing?
The idea that Congress can effectively deny the SCOTUS jurisdiction over areas of CONSTITUTIONAL jurisrpudence is cherished only by those who hate the idea of a constitution in the first place.
Aaron
I’m not up on the crazier ends of conservative legal thought, but is there really anyone out there who believes that Congress should be allowed to restrict the right to travel between states?
Correct me if I’m wrong, but I thought what made our Constitution so innovative was the fact that it listed what the government could do, and left the rest to the people and to be hashed out in the future. Didn’t the founders set an example by inserting the Bill of Rights as amendments? Doesn’t that imply that the Constitution must be interpreted as you go along, along with the needs of the people? Does this “original intent” school of thought believe that things like the fourteenth amendment and women’s right to vote (definitely not the founder’s original intent) are nonsense and should be gotten rid of? Does original intent include the Bill of Rights, or is it just the original Constitution? And who gets to decide what their “original intent” was?
Sojourner
He’s beginning to sound more like a wingnut than a traditional right-winger.
Mark
Interesting position Roberts takes. If he truly still believes this, he’s quite possibly to the right of Clarence Thomas.
To deny the Supreme Court judicial review of ANYTHING Congress passes into law is to strike down Marbury v. Madison. That’s an act equivalent to saying, “let’s erase the entire history of U.S. jurisprudence, abondon the common law tradition of the Founders and adopt civil law, like the French.” This would render the Bill of Rights unenforceable, and neuter the 3rd branch of gov’t. This would create ZERO checks and balances when the President and the Congress were aligned, as they are now. It sounds like a recipe for authoritarianism to me. No more protections for the minority. Pretty radical stuff.
Roberts cannot claim to exercise judicial restraint with a postion like this. He’s an activist judge of the worst kind, if this is true.
Vlad
Forgive my ignorance, but who or what are Tribe, Lewis, and Brink?
Geek, Esq.
Lawrence Tribe is perhaps the most famous liberal law professor in the country.
Anthony Lewis was a columnist for the NY Times.
Brink was head of the ABA.
Vlad
Thanks. It works much better with the context.
Mark
Aaron-
The Bill of Rights and subsequent amendments (14th) are part of the Constitution, and even the so-called “originalists” believe they should be given effect. However, you’ve stumbled upon the fallacy of this so-called “originalist” mode of constitutional interpretation. How does one decide what the original intent was? Do we consult an old dictionary? Which one? Should it be a legal dictionary? How do we know the drafters intended to use the dictionary’s definition? Further, a dictionary isn’t going to give you an unambiguous answer with its brief, out of context definition. Should we apply the intent of the drafters or the ratifiers of the constitution? Is there even a clear record of this?
In the end, the so-called originalists have to come up with their own idea of what the law means in the context of modern disputes, just like any other judge. Frankly, anyone who thinks should we should apply 18th century interpretations (if we could even know what these are- we can’t) to the 21st century situations is rediculous.
The Founders drafted the Constitution without fine details because they wanted a short document, meant to stand the test of time. They modeled our legal system off British common law, where judges were encouraged interpret and even shape the law over time. Simply put, this “originalist” nonsense is contrary to the purpose of the Constitution.
Kimmitt
I wish I were surprised that Roberts is a wingnut instead of a conservative.
Defense Guy
Mark
You are wrong, the founders wanted us to consider their intent every time we look at the constitution. They even said as much:
Mark
Defense Guy-
Sweet. Your little exercise of selective quote posting only furthers my point that we can’t accurately know what these people intended at the time they wrote. Case in point- I read them differently than you do; these 3 quotes do not say what you intend to squeeze out of them.
Jefferson says we should go back to the time of the drafting to “recollect the spirit” of the debates. I agree. But that’s a far cry from saying we shouldn’t apply that spirit to modern circumstances. In Griswold, the right to privacy was based on that very “spirit” of the constitutional debates (a privacy theme in the Bill of Rights), although not literally stated in the document. Yet many conservatives criticize that opinion.
Further, can we honestly pretend to understand Jefferson’s postion on Constitutional interpretation based on one ambiguous statement, taken out of the context of a letter to a friend? I’m sure we’ve all written things in an email that could be taken out of context…
Washington’s quote merely says don’t abuse the Constitution by changing it w/o an amendment. It’s a matter of opinion whether judges are changing the Constitution, or merely interpreting it in the spirit of the Founders.
Madison’s statement above, if taken literally, may support your position. However, are you sure he’s saying what you want him to say? Is it consistent with his entire body of writing on the Constitution? Can one man’s words = the original intent?
Are you seeing the problem with originalism yet?
Geek, Esq.
Ironically, it’s Scalia who’s most disdainful of intent when it comes to acts of Congress.
Defense Guy
Mark
Yes they do. Your problem seems to be the idea that nothing is knowable so long as it does not follow your line of reasoning. You should try reading the Federalist papers sometime, and stop thinking that there are no absolutes.
The quotes given are in proper context and deal exactly with the issue you stated, that there is no way to know what they meant. It’s a small child’s game you play.
W.B. Reeves
Mark pretty much nails the original intent nonsense. As he points out, the assumption of the interpretive function of the courts was a given considering the legal tradition that the framers were operating from.
I would add what I think is an equally fundamental point. It is impossible to argue that there is any such thing as a collective “original intent” of the framers unless one simply ignores the political realities of the time.
There is a tendency in some quarters to treat the Constitution as scripture rather than as the raw political document it is. As if the framers were in full and unambiguous accord about all matters before them. This view attributes a clarity to the original document that it does not, in fact, possess.
Far from being the distillation of the framer’s inspired collective wisdom, the Constitution was produced by an intensely political process with all the factionalism, horse trading and free play of competing interests that implies. As such, it does not represent a settled consensus but the minimum compromise acceptable to the majority. The result, as one might expect, is a document which not only contains ambiguities but relies upon them.
Anyone who doubts this need only look at the Constitution as regards slavery. I imagine most people know that the Constitution originally provided that slaves be counted as 3/5 a person for purposes of taxation and representation. What might not be as widely known is that the words “slave” or “slavery” appear nowhere in the original text.
This wasn’t an oversight. It was an obscurantism necessary to conciliate anti-slavery sentiment while not alienating slave holders. An ugly political compromise that led to much grief.
It was this politically motivated ambiguity that allowed abolitionist and later Chief Justice, Salmon P. Chase to develope a Constitutional argument against slavery. Likewise, it prompted pro-slavery Chief Justice, Rodger Taney to issue his tortured Dred Scott opinion, attempting to grandfather Slavery into the Constitution via an expansive reading of the right to property.
Can anyone seriously suggest that the framers held a clear intention in common when they crafted such language? Other than avoiding a divisive issue that is.
Another example of tricky wording is the so-called just compensation clause. Until the recent Supreme Court ruling on eminent domain, most folks viewed this clause as protecting their property from seizure by the Government. In fact it does the opposite, upholding the power of the state to seize property so long as it provides what it conceives of as “just compensation”.
Original intent founders on the fact that political documents, unlike religious texts, are transparently an amalgam of conflicting interests and intentions. Assuming you could sort them out, you’d still have to decide which intent to honor and which to ignore.
Al Maviva
This is really a funny debate, and I’m impressed at the level of ignorance out there of how government works. This high level of ignorance is a precondition for inflicting the current debate on the public. (Otherwise known as Estradafication).
On most controversial, big ticket problems, the top political decision maker at each executive level of government (asst. secty, under secty., secty, AG) will assign two legal teams (or at least two different attorneys) the task of preparing decision memos. One team will figure out the best argument pro-, and the other will figure out the best argument con-, and each will urge their principle in the strongest possible terms to adopt that position. They then preview each others memos, and insert the best pro- and con- rebuttals they can muster. The principle may even resort to a moot court style oral argument, and then the stronger position is adopted by the agency, taking into account the law and political considerations (hopefully) voiced in the decision memo. At least a couple of the writings released by the WH concerning Roberts’ service as a staff attorney at DOJ appear to be such decision memos. You are a bigger bunch of jackasses than I ever expected, if you think that those memos reflect his personal opinions. They are probably even less reflective of his mindset, than the briefs he filed as a private attorney, since at least in the private sector, one has broad discretion about how to argue a case.
I imagine somewhere there is a memo with Seth Waxman’s name on it, arguing against abortion or in favor of federalist separation of powers, a la Lopez. There’s probably a memo somewhere with Ted Olson arguing against parental notification laws, too. That’s how it works, and that’s why releasing these internal working papers is stupid, and only serves to cloud the issue.
Go ahead and keep kicking the can on this, you dumb libs. By the time you’re done, no conservative attorney with prior government service will be confirmable to the high court or high government office – but then, neither will any liberal. It’s a nice way to guarantee that no highly qualified people with long government experience submit themselves for stints of service in the Executive branch. They certainly won’t serve and learn the ropes if they ever want to serve as a judge or senate confirmed officer.
BTW, in case you didn’t figure it out, a substantial chunk of the blame for the election results in 2004 falls at the feet of the Mass and U.S. Supreme courts. Block this guy Roberts – clearly the top appellate lawyer of his generation of any stripe – and you will be walking into another fiendish Karl Rove trap, and the blocking of judicial candidates to hold out for liberal activists will be a major campaign issue. This is the slow, hanging curveball of politics, with ties to Kelo, gay marriage, abortion, and a whole lot of other issues y’all don’t want to grab too hard. Don’t say you haven’t been warned.
Mark
Defense Guy-
Plenty of things are knowable, just not what went on in the minds of people 2 centuries ago. But nice try putting words in my mouth.
I’m plenty familiar with the federalist papers, thank you. Those writings, by 3 men (one of which wasn’t part of the Constitutional Convention), prior to the drafting of the Constitution, are not what I’d call a reasonable place to derive meaning. And certainly nothing in those writings (keep in mind they were all lawyers) was stated in absolutes.
Are you saying that Marbury v. Madison was bad law?
As for your “small child’s game” remark…only a child’s intellect would resort to such a pathetic attack.
W.B. Reeves (above) hits the nail on the head. I’d be interested to see an originalist’s response to it…and Defense Guy, cherry-picked quotes from a couple Founders is not a response.
Mark
Al Mavira-
While your tone is a bit hysterical, you’re correct that no one should be assuming these memos completely reflect his personal opinions. However, something can be gleaned from them. You don’t get to be a Reagan or Bush attorney of any stature unless you support their conservative postions on the Constitution. This isn’t like representing a private corporation.
Further, you’re not so naive as to think Robert’s notes in the margins don’t reflect his personal views? Scrawling “NO!” next to a position in a brief sure seems to indicate something to me.
Regardless, the confirmation hearings are where (hopefully) the Senators will ask him if he agrees with what he wrote for the DOJ. Then he’ll either lie, or we’ll see what his views on the Constitution are. Unfortunately, because Roberts lacks any significant judicial experience, that’s the best we can do.
Defense Guy
You may think yourself clever, Mark, but it helps to be accurate as well. How do you propose that we accept your premise that we cannot know what was the original intent of the framers was, and then drop a shitloaf like “The Founders drafted the Constitution without fine details because they wanted a short document, meant to stand the test of time.”
My ‘cherry-picked’ quotes from the actual framers on the subject, still speak volumes above your attempt at having it both ways. If you are to consider meddling with the constitution, go back to the reasons it was crafted the way it was. I realize this sucks for modern day liberalism, but you will just have to be either more popular or more creative.
Beej
Mark and Defense Guy
The Madison quote is interesting. Without the context, it seems to me that this quote could quite easily be read as a caution against interpreting the Constitution and, of course, its amendments too literally. For example, the 1st amendment says: “Congress shall make no law abridging the freedom of speech.” A pretty definitive statement that Congress can’t curtail the right of a citizen to say what he wants, when and where he wants. Yet we would all agree, I expect, that yelling “Fire” in a crowded theater, just to cause pandemonium, is such a bad idea that it may even be a criminal act. Clearly, the founders were not such boobs that they would not have recognized this. Yet they chose to let the words stand. A full reading of the Constitution and its amendments can almost convince you that the framers were not only anticipating interpretation and reinterpretation, but were actually inviting it.
Al Maviva
Mark, there are days that I hope you on the left win this battle to divorce “the law” – i.e. the judges – from the tyranny of the black letter of the text ratified by the legislature and signed by the executive. Reason being, I’m fairly confident my side can capture the courts, and then really stick it to you left wing numbnuts. Once your side completely destroys fidelity to the text, there’s no reason my side should stick to it. That would be stupid – why cling to a sinking ship? Nope. If you are fighting for the right for judges to wear Superman’s cape, to right wrongs where no legislature dares to tread, well, I suppose I can live with it, as long as my side owns the courts. Some would argue that a judge sitting in isolation, handing down rulings that effect the nation, based on the pleadings of just two individuals, is poorly situated to be a lawmaker for the entire nation. I’d normally think that, but on days like this, seeing the profound obtuseness of the arguments on your side, I think I’d settle for it as long as I’m in substantial agreement with the judge on most issues.
On the other hand, what I actually prefer is near slavish devotion to the black letter of the law. The reason is simple. If everybody agrees to follow the black letter, we have a process for arbitrating disputes among the public – it’s called voting. We vote on representatives, the representatives make law. It means sometimes my side loses, sometimes my side wins. I can live with that, because it arbitrages out the possibility that your side will completely capture the courts (a view you might want to consider with respect to my side) and hence neither side can claim ownership of “the law.” It leaves the public free to make up its mind about important issues, and to change its mind about important issues – see, e.g. prohibition. When you throw all decisions to the courts, bad decisions tend to live on, since courts are reluctant to reverse themselves; it would mean a terrible loss of face, you see. No, I’d rather take a chance and let the people vote on things. I know enough lawyers, and enough judges, to be certain down to my very essence, that we should not be running the country based on what *we* think is right; the people should be doing it, and the people can’t do that if the courts function as a superlegislature.
W.B. Reeves
Interesting. One could almost call it a faith based approach to Constitutional Law. For some people, it appears an article of faith that they know exactly what the framers intent was, even though the framers were at odds amongst themselves. Note this and the reaction is similar to that you would face if you pointed out fallacies in a religious text to a true believer. Angry denial and a refusal to face facts.
This dispute is nothing new in U.S. History. There have been arguments about the meaning of the Constitution practically since its inception. Review the history of the Alien and Sedition Act under Federalist President John Adams and Democratic-Republican Pres. Thomas Jefferson if you doubt this. Of course, Mark has already raised Marbury vs. Madison, a submission greeted with thundering silence by his opponents.
There is an old chestnut about law and lawyering: “If the facts are against you, argue the law. If the law is against you, argue the facts. If both the facts and the law are against you, pound on the table.” That’s what we have here. Instead of factual argument we get the usual name calling and partisan hackery, combined with a rather cheap and silly attempt at rhetorical bullying.
The appeal to Black Letter Law is a bit of double talk. Black Letter Law is simply those “principles of law which are generally known and free from doubt or dispute.” Or as Judge Roberts might describe it, settled law.
Since we are having this debate, its obvious that the points in contention are neither free from doubt nor undisputed. Raising Black Letter Law in this context is merely a means of claiming authority for a particular view of the law without answering opposing arguments.
Mark
Defense guy-
Look, there are two levels of intent here. First, there’s the big-picture intent of the Founders- the short, blueprint of a constitution we have means they expected interpretation, not black letter adherence. That’s what I agree we can understand. Second, there’s the claim to know the intent of each and every word and phrase of that ancient document. That I disagree with. If you can’t (or won’t) understand the difference, I can’t continue this discussion with you.
The fact that you misinterpret my words only furthers my point that understanding the literal intent behind the written word is a dangerous game.
Mark
Al Mavira-
Again, you’re hysterical. No one is seriously claiming that we should give judges free range to make law ad hoc. Part of being a judge under the common law tradition is interpreting the law, and yes, sometimes it looks like the judges are “making law”…especially if you happen to dislike the outcome. This isn’t a left vs. right battle. It’s common law vs. ajudicial rule by legislature. We’ve had this system in place for a couple of centuries, and even longer if you go back to our British legal origins. Guess what? It works!
Furthermore, you forget that if the courts misinterpret a law, Congress can amend that law to clarify what they meant. There’s no real danger of a super-legislative judiciary, although there seems to be a lot of folks on the right wringing their hands lately. If you were familiar with the court system, you’d realize that judges are not politicians. While there are some bad apples, I honestly believe that the vast majority put the law above their own personal politics. That’s why I’m concerned with some of Bush’s selections to the courts of appeals- overly partisan “judges” with thin legal backgrounds. That doesn’t bode well for your views on black letter law.
Defense Guy
Let me guess Mark, you are a fan of using the commerce clause as the catch-all for creation of new ‘rights’ in the Constitution. Am I right?
W.B. Reeves
Nice choice for dodging the question. Those with memories longer than the last news cycle will recognize that this is the clause that was used to invalidate Jim crow segregation laws throughout the South. Is this the sort of thing you mean by “new rights”?
Defense Guy
Yes it was WB. But it has been used for a number of other less stellar reasons as well, most recently in the medical marijuana case. I think the outcome on Jim Crowe going away was the right one, but the use of the commerce clause seems a dodge.
W.B. Reeves
Thanks for clarifying. I’d almost decided that you ignored hard questions as matter of policy. I’m glad to know you agree with the outcome vis-a-vis Jim Crow if not with the means used for attaining it.
Defense Guy
While you will never be able to tell the exact thought process used when crafting the words, the reasons why the words were used were spelled out for us in a variety of sources from the time. In addition, we have it in the words of the authors that when we consider the document we must also consider the context in which it was created (the history of the time) as well as the effect of the words themselves.
Mark
How has the commerce clause been a vehicle for “new rights”? You must mean the expansion of the reach of Congress into intrastate affairs, right?
We liberals prefer to use the due process clause, the 9th Amendment, and “emanations and penumbras” to create those terrible “new” rights ;-)
I agree that the commerce clause has been overused, but I think we’ve seen a retreat from that by the Rehnquist court since Lopez. I’m not worried that the Court will strike down labor and environmental laws (only Thomas would do so), but they’ll definately curtail Congressional overreaching, which is a good thing to this liberal.
I think we’ll have agree to disagree on constitutional interpretation.
W.B. Reeves
Good in so far as it goes. However, if you are going to buy into the original intent argument “a variety of sources” won’t cut it. You would have to produce a complete and full record of each framer’s intent in their own words. Otherwise, you are simply retailing the particular view of the framer or faction cited rather than the collective intent of the framers as whole. Such a complete record does not exist.
What does exist is the text of the Constitution and the history of disputes over its meaning. As I pointed out above, the text of the Constitution itself gives clear evidence that different factions intended different meanings for particular passages of the text. Given this, positing a single original intent is, at best, a legal fiction.
Further, if it were true that the framers were all of one mind and intent, how is it that Federalists, John Adams and Alexander Hamilton, supported the legitimacy of the Alien and Sedition Act, whereas Thomas Jefferson and James Madison considered it a tyranical usurpation?
You might consider as well your own quotation from Jefferson. If the Framers intent was apparent, as you seem to believe, why would Jefferson appeal to some ill defined “spirit?” He didn’t cite the Federalist Papers, James Madison’s notes or Black Letter Law. Nor did he claim the meaning of the text was self evident. Instead, he suggests that we try to imagine the “probable” meaning. I think that Jefferson was smart enough to know that this was a recipe for multiple, differing interpretations.