OLD MEMOS HELP DEFINE NOMINEE Roberts's views often to right of superiors
David E. Rosenbaum
The early 1980s were a heady time for conservatives in Washington.
Ronald Reagan was president and, after years on the outside, some of the strongest voices in the conservative movement - men like Edwin Meese 3d, James Watt, William Bradford Reynolds and Theodore Olson - were in high positions in the government and were determined to reverse what they believed to be years of liberal policies in areas like civil rights, environmental protection, criminal law and immigration.
John Roberts, a lawyer in the Justice Department in 1981 and 1982 and on the White House counsel's staff from 1982 to 1986, was too junior to set policy.
But his internal memorandums, some of which have become public in recent days, reveal a philosophy every bit as conservative as that of the policy makers on the front lines of the Reagan revolution and give more definition to his image than was apparent in the first days after President George W. Bush picked him last week to be an associate justice of the Supreme Court.
On almost every issue he dealt with where there were basically two sides, one more conservative than the other, the documents from the National Archives and the Ronald Reagan Presidential Library show that Roberts, now on the federal court of appeals for the District of Columbia, advocated the more conservative course. In some instances, he took positions even more conservative than his prominent superiors.
He favored less government enforcement of civil rights law rather than more. He criticized court decisions that required a thick wall between church and state. He took the side of prosecutors over criminal defendants. He maintained that the courts should be limited and the president's powers enhanced.
Roberts was 26 when he joined the Reagan administration and 31 when he left. But the ideology he expressed then helps explain why conservative activists seem pleased with him today.
Consider Roberts's stands on some of the hottest political issues of the 1980s as revealed in the newly public documents:
In 1985, when he was an assistant White House counsel, Roberts took issue with Olson, an assistant attorney general at the time, on whether Congress could pass a law that outlawed busing to achieve school desegregation. Olson, who considerably outranked Roberts and who was one of the nation's most widely known conservative lawyers on constitutional matters, was arguing that Congress' hands were tied because the Supreme Court had ruled that busing was constitutionally required in some circumstances.
Roberts wrote a memorandum to the White House counsel, Fred Fielding, saying that Olson had misinterpreted the law. He said evidence showed that, by producing white flights, busing promoted segregation rather than remedying it.
Roberts also challenged Reynolds, who was assistant attorney general for civil rights and another prominent conservative.
In 1981, he urged Attorney General William French Smith to reject Reynolds's position that the department should intervene on behalf of female prisoners who were discriminated against in a job-training program.
If male and female prisoners had to be treated equally, Roberts argued, "the end result in this time of state prison budgets may be no programs for anyone."
Roberts consistently argued that courts should be stripped of authority over busing, school prayer and other matters.
PRESIDENTIAL WAR POWERS
In 1983, Arthur Goldberg, former Supreme Court justice, wrote a letter to the White House questioning Reagan's constitutional authority to send troops to Grenada without a declaration of war.
Roberts replied with a ringing endorsement of the president's power.
"This has been recognized at least since the time President Jefferson sent the Marines to the shores of Tripoli," he wrote.
Roberts held that affirmative action programs were bound to fail because they required "the recruiting of inadequately prepared candidates."
"Under our view of the law," he wrote in 1981, "it is not enough to say that blacks and women have been historically discriminated against as groups and are therefore entitled to special preferences."
Roberts took strong issue with a Supreme Court decision that struck down a Texas law that had allowed school districts to deny enrollment to children who were in the country illegally. The court had overreached its authority, he wrote, and the justice Department had erred by not entering the case on the side of the state.
Robert was sharply critical of the Supreme Court decision outlawing prayer in pubic schools, and he said the court had exceeded its authority when it allowed any citizens to challenge the transfer of public property to a parochial school.
John M. Broder contributed reporting fro Simi Valley, California, and Jonathan D. Glater from Washington.