As a young lawyer in the Reagan White House, Supreme Court nominee Judge John Roberts Jr. helped shape the debate on some of the era’s most controversial issues, including abortion and school prayer. And he held nothing back when analyzing the revolutionary theory of “comparable worth,” a proposal to pay women the same salaries as men even when they were in different jobs.
The theory, supported by the Carter administration to achieve pay equity, was one of the more contentious labor issues of the time. When a federal judge approved it in Washington state in 1983, Roberts harshly criticized the novel ruling as giving judges, not the market, the power to decide the value of different jobs, according to new documents released Monday.
The judge in the “comparable worth” case had ruled that certain state jobs done primarily by women, such as laundry work, should be paid at the same rate as jobs done by men, such as driving trucks, if their worth to society was roughly the same.
“It is difficult to exaggerate the perniciousness of the `comparable worth’ theory,” Roberts, then an associate White House counsel, wrote to White House Counsel Fred F. Fielding in early 1984. “It mandates nothing less than the central planning of the economy by judges.”
But not everyone saw the issue that way, including three female Republican House members. In a letter to the White House, they urged the administration not to challenge the judge’s decision, which they said would enable women to make substantial gains nationwide. One of them, Olympia Snowe of Maine, is now a U.S. senator who will vote on Roberts’ confirmation.
“I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept,” Roberts wrote in another memo to Fielding on the decision, which ultimately was reversed on appeal. “Their slogan may as well be, `From each according to his ability, to each according to her gender.'”
The memos were among the 5,393 pages of records released Monday by the Ronald Reagan Presidential Library from Roberts’ files when he worked in the White House counsel’s office. The library has identified another 40,000 pages of documents that will be opened before the Senate Judiciary Committee is scheduled to begin hearings Sept. 6 on Roberts’ nomination to succeed Justice Sandra Day O’Connor.
The batch of documents released Monday show Roberts consistently articulating a conservative position that envisions a limited role for courts and judges.
“The documents released today show that as a White House lawyer John Roberts was a forceful proponent of Reagan administration policies on abortion, school prayer, criminal justice and other hotly contested issues,” said Ed Whelan, president of the conservative Ethics and Public Policy Center and a former general counsel to the Senate Judiciary Committee. “Those who try to paint Judge Roberts as a squishy moderate will not find any supporting evidence in these documents.”
The memos, for example, suggest he believed a moment of silence in schools or even a time for silent prayer were constitutional. A 1985 Supreme Court decision to the contrary, he said, was “indefensible.”
In a November 1985 memo to Fielding, Roberts criticized the recent Supreme Court case, Wallace vs. Jaffree, which said a moment of silence in the Alabama schools violated the Constitution because it was designed to return prayer to the classroom.
“Many who do not support prayer in school support a `moment of silence’ (including Sen. Biden), and the conclusion in the . . . case that the Constitution prohibits such a moment of silent reflection–or even silent `prayer’–seem indefensible,” Roberts wrote.
Roberts was referring to Sen. Joseph Biden (D-Del.). In the memo, Roberts said he would not object to an administration position in favor of a constitutional amendment allowing such moments of silence. Some in Congress had proposed such an amendment to overturn the Jaffree ruling.
Roberts also had written about the case the day the court released its decision earlier that summer. In a June memo, Roberts argued that a majority of the justices would vote to uphold a moment of silence if the circumstances of the case were right. He said the Alabama law “was struck down because of the peculiarities of the particular legislative history, not because of any inherent constitutional flaw in moment-of-silence statutes.”
Recent Supreme Court experience with a Virginia statute permitting a moment of silence suggests his analysis would be correct today. In 2001, Chief Justice William Rehnquist refused to block the Virginia law, noting that, unlike the Alabama statute in 1985, it was not motivated to return prayer to schools. The next month, the court refused to take up that case, opting to let stand a federal appeals court decision that had upheld the Virginia statute.
Analyzing loss in court
In the memos released Monday, Roberts, who had clerked for then-Justice Rehnquist and would later become recognized for his arguments before the Supreme Court, offered a concise analysis of why the 1985 opinion had come out the way it did. Roberts hypothesized that Rehnquist, who supported the moment of silence in the Alabama case, originally had a majority but tried to make too sweeping a legal argument, thereby losing Justices Lewis Powell and O’Connor.
“As I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority,” Roberts wrote, adding that it may have been worth it to reach for the larger goal.
Roberts had been immersed in the school prayer debate for some time, as well as in legislative efforts to limit the court’s review of such cases. The month before the Jaffree decision, Roberts wrote a memo to Fielding on contentious proposals by some lawmakers to strip the Supreme Court of the ability to hear school prayer cases. Several members of Congress had introduced legislation to scale back the court’s jurisdiction, in the wake of decisions on prayer and other social issues.
Roberts had studied the issue in depth when working in the Justice Department as an assistant to Atty. Gen. William French Smith. He concluded that Congress had the legal right to strip the court of jurisdiction in this way, but that “such bills were bad policy and should be opposed on policy grounds.”
During his year in the Justice Department, Roberts also had written extensively about the administration’s desire to limit the role of judges and the courts in solving societal problems.
In a 1983 memo released Monday, Roberts criticized a proposal by then-Chief Justice Warren Burger to create a new court between the Supreme Court and the federal appeals courts. Burger had suggested the new court to handle the Supreme Court’s growing caseload.
But Roberts called it a “terrible idea,” and said the court’s growing caseload was its own fault because the justices “unnecessarily take too many cases and issue opinions so confusing they do not even resolve the question presented.”
“If the justices truly think they are overworked, the cure lies close at hand,” Roberts wrote. They could be less aggressive in reviewing criminal procedure and death penalty cases, he said.
Awkward abortion case
Roberts also became involved in a politically awkward abortion case in which Phillip Dreisbach, secretary of an anti-abortion group called the California Pro Life Medical Association, sought to directly involve Reagan.
After 16,500 aborted fetuses were discovered at a medical lab in 1982, Dreisbach’s group wrote to Reagan, and Reagan replied by writing of his “great horror and sadness.”
The group then infuriated the White House by making Reagan’s letter part of a graphic anti-abortion exhibit. Undeterred, the group planned a memorial service for the fetuses and solicited the White House counsel’s office about the idea of sending a presidential telegram supporting the service.
Roberts suggested this be done, despite Dreisbach’s earlier attempt to use Reagan’s letter in what Roberts calls a “gruesome anti-abortion display.”
“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,” Roberts wrote.
But Fielding, Roberts’ boss, noted that there was litigation about the burial of the fetuses and that Dreisbach had gone against White House desires in using the Reagan letter as part of his exhibit. He apparently overruled Roberts. Yet somehow the telegram went out anyway, angering Fielding.
