Roberts a Committed Conservative Wary of Judicial Excess, Files Show

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

COLLEGE PARK, Md. – The voluminous files Judge John Roberts Jr. kept while a young attorney at the Justice Department paint a picture of the future Supreme Court nominee as a politically savvy and ideologically committed conservative.


However, the documents made available yesterday at the National Archives facility here – estimated at 15,000 pages or more – do not support the notion that Judge Roberts backs a particular school of conservative constitutional interpretation under which the courts would dramatically scale back the authority and scope of the federal government.


Soon after joining the Justice Department in 1981, Judge Roberts was involved in a Reagan administration initiative to promote judicial restraint.


“Not all social ills call for a governmental solution, certainly not a constitutional solution administered by judges,” Judge Roberts argued in a draft magazine article he submitted to another department attorney, Kenneth Starr. “Congress and the Executive can be checked by the judiciary when they exceed their power but the judiciary is unique among the three branches in that it is the judge of its own power,” a similar draft in the young lawyer’s files said.


Both articles argued that a landmark 1905 Supreme Court decision that undermined the regulation of economic activity was an example of judicial excess. “In the era which has come to be epitomized by Lochner v. New York … it was conservatives who urged judicial activism under the banner of due process to strike down popular enactments,” one of the drafts asserted.


Judge Roberts noted that he spent his first day on the job at the Justice Department preparing for the confirmation hearings of the same judge President Bush nominated him to replace, Justice O’Connor. “The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments,” Judge Roberts wrote. He said he also helped run Justice O’Connor through two practice sessions for the Senate hearings.


One of the most contentious matters Judge Roberts delved into was the Justice Department’s effort in 1982 to come up with a position on proposed legislation that would strip the courts of power to hear cases involving forced school busing, prayer in schools, and other issues. The future Supreme Court nominee demonstrated his able legal skills, in one instance drafting memos coming down on both sides of the constitutional question.


However, his handwritten personal notes indicate that he believed the Constitution gives Congress broad power to limit the Supreme Court’s jurisdiction.


That’s clear from Judge Roberts’s critique of a memorandum signed by one of the Justice Department’s top lawyers, Theodore Olson, who argued that President Reagan would benefit politically by spurning the efforts some conservatives were making to cut back the court’s authority. “This would be perceived as a courageous and principled decision, especially in the press, and may have highly salutary long term benefits to the president,” Mr. Olson wrote.


Judge Roberts scoffed at that conclusion, scrawling in the margin of Mr. Olson’s memo, “real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises and Brinks.” Judge Roberts appeared to be referring to liberal legal authorities who argued that curtailing the court’s authority was unconstitutional, including a Harvard law professor, Laurence Tribe, and the then-president of the American Bar Association, David Brink.


When Judge Roberts arrived at the department in 1981, he was 26 and fresh from a clerkship for Justice Rehnquist. In a memo the following year, he drew on that experience to offer the White House advice on how to improve relations with the Supreme Court. “The White House could do much more than is presently being done to cultivate cooperation and understanding with the justices,” Judge Roberts wrote. He went on to suggest that President Reagan send Christmas cards to the justices and invite them on suitable foreign trips.


Judge Roberts warned that the justices could be prickly about the press. “The justices are likely to be offended by any events designed to attract or having the effect of attracting media attention to them as a group,” the attorney wrote.


The former clerk advised that at an upcoming group lunch with the justices, Mr. Reagan and his aides should not play favorites. “It must be perceived as a personal and relaxed meeting with the president and not some heavily staffed media event. The justices should be treated with equal dignity and attention,” he wrote.


While recent accounts have described Judge Roberts as unusually closed-mouthed for a Washington attorney, he appears to have spent much of his early Justice Department career strategizing about the press. He regularly prepared letters to the editor and op-eds for other department officials.


In one memo, Judge Roberts discussed negative coverage the Justice Department was receiving in conservative publications like National Review and Human Events. “The repeated complaint is that Carter holdovers are thwarting implementation of conservative policy by presenting only established liberal legal dogma to their superiors, who are ill-equipped to refute the analyses presented to them,” he wrote. He added that some conservative outlets were concerned that too many political appointees were “establishment lawyers who are not committed to the Reagan ideology, particularly on the so-called ‘social issues.'” He even noted that similar charges were leveled at the administration over Justice O’Connor’s nomination.


Judge Roberts pragmatically counseled the attorney general, William Smith, to dodge the charge. “It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decisional process,” the future nominee wrote.


In one op-ed Judge Roberts drafted, he warned that a proposal to expand the Voting Rights Act could result in a “racial quota system in electoral politics.”


Some of the material in the files is of limited use in assessing Judge Roberts’s legal predilections. Many of the documents appear to represent a consensus view of other officials in the department. In addition, the decades old records cannot account for how the judge’s views may have evolved over the course of his legal career.


Still, some items in the files may prove useful to senators looking to trip up the judge at his confirmation hearing. In internal discussions, Judge Roberts argued for a narrow interpretation of the federal law banning sex discrimination by schools, known as Title IX.


“Under title IX, federal investigators cannot rummage wily-nily through institutions, but can only go as far as the federal funds go,” he wrote in a memo arguing that the department not appeal a district court’s ruling limiting the anti-discrimination law only to parts of a school that receive federal funds.” The women’s groups pressuring us to appeal would have regulatory agencies usurp power denied them by Congress to achieve an anti-discrimination goal,” he observed.


The Reagan administration agreed with Judge Roberts’s legal analysis but ultimately agreed to broaden the law to cover entire schools.


The New York Sun

© 2025 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  Create a free account

or
By continuing you agree to our Privacy Policy and Terms of Use