The most intriguing question about John Roberts is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages. It is a question of great relevance to Roberts’s candidacy for the Supreme Court. As the late Charles Black has written, no serious person is under the illusion that “a judge’s judicial work is not influenced…by his sense, sharp or vague, of where justice lies in respect to the great issues of his time.”
After a privileged upbringing in an Indiana suburb, attendance at an exclusive, expensive private school, high ranking at the undergraduate and law schools of Harvard, and clerkships with Federal Appeals Judge Henry Friendly and Supreme Court Justice William Rehnquist, John Roberts took a job in the Reagan administration. There he joined in its efforts to dismantle the civil rights gains of the 1960s and 1970s. His work as a young man in the 1980s established the pattern of his later public career.
Roberts was first employed in 1981 and 1982 as a special assistant to the attorney general, William French Smith. He went from there to the Reagan White House in November 1982, where he served as associate counsel to the President for three and a half years. During this period, Roberts played an important part in the administration’s efforts to curtail the rights of African-Americans, to deny assistance to children with disabilities, and to prevent redress for women and girls who had suffered sex discrimination. He also justified attempts by the state of Texas to cut off opportunities for the children of poor Latino aliens to obtain an education. Roberts was in favor of limiting the progress of African-Americans in participating in the political process and of making far-reaching changes in the constitutional role of the courts in protecting rights.
In all of these efforts, which halted temporarily when Roberts left government for private practice in 1986, he was no mere functionary. Indeed, he often was prepared to go beyond his conservative superiors in the Reagan administration in mounting a counter-revolution in civil rights, expressing frustration with his conservative superior at the Justice Department, Theodore Olson, differing on a key constitutional issue with Robert Bork, and disagreeing on voting rights with Senator Strom Thurmond.
The issue that has had the most far-reaching implications for civil rights was given the unilluminating name “court stripping.” It was part of the continuing legal struggle over enforcing the Supreme Court’s landmark decision in Brown v. Board of Education to end mandated racial segregation in public schools. Efforts to implement Brown had stalled until 1964, when Congress passed the Civil Rights Act, which declared school desegregation to be national policy and provided the means for enforcing it. There followed Supreme Court decisions adding legal content to the act, which then led to widespread desegregation of public schools throughout the …