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 South.
In 1980, segregationists in Congress led by Senator Jesse Helms responded with bills to prohibit the Justice Department from bringing action in the courts to desegregate schools, and to bar the courts from issuing remedies that would require the busing of students for that purpose. Similar bills were proposed in cases involving school prayer and abortion rights.
A fierce debate followed at the Justice Department and in the Reagan White House. Some lawyers recognized that a great deal was at stake in these billsâ€”that they were an assault on the Supreme Court’s role as the final arbiter of what the Constitution means as well as an assault on the separation of powers. David Brink, then president of the American Bar Association, described the court-stripping bills as “a legislative threat to our nation that may lead to the most serious constitutional crisis since our great Civil War,” and the ABA House of Delegates “strongly objected” to the bills because they “propose to change the constitutional law by simple legislation, instead of by the means provided in the constitution.”
In addition, the Conference of Chief Justices of the States resolved unanimously that court-stripping bills were a “hazardous experiment with the vulnerable fabric of the nation’s judicial system.” Within the Department of Justice Theodore Olson, then Roberts’s superior and a lawyer with impeccable conservative credentials, worried about the advisability of supporting the legislation. Other constitutional conservatives, such as Yale Law School professor Alex Bickel (an ardent opponent of busing), and moderate Republicans, such as former Attorney General Elliot Richardson, as well as Robert Bork (who was to become a model of extreme legal conservatism), expressed concern publicly about the constitutionality and wisdom of court stripping. John Roberts had no such reservations. In memos deriding Brink and others, he claimed that Congress had the power to eradicate busing as a “failed experiment.”
Roberts believed he had lost the internal debate with Olson even though Attorney General William French Smith testified in 1982 that while Congress could not interfere with the “core powers” of the Supreme Court, it could establish limits to the remedies approved by the courts. Smith’s distinction failed to recognize that the bill’s authors were proposing to abolish what in many cases would be the only effective judicial remedy for unlawful segregation. And in the end, it was a near thing. In his most substantial legal writing on the subject, an undated twenty-seven-page memo, Roberts conceded that the equal protection clause of the Fourteenth Amendment could pose a formidable barrier to legislation intended to strip the federal courts of jurisdiction over cases involving school desegregation. But, he noted, the problem might be surmounted, since strict scrutiny would be applied only if there were “racial classification,” and the legislation in question would only classify cases by type, i.e., not “race” but “school desegregation.” Giving state courts the final say over school desegregation, he added, would not involve unequal treatment because white officials as well as black groups would lack the right to appeal. He did not suggest how likely he thought it would be for a state court to rule against the segregation practices of, say, Governor George Wallace.
Although the Senate passed the Helms-Johnston amendment to ban the use of busing to achieve desegregation, the House did not. Roberts did not give up easily, however. As late as 1984, from his office in the White House, he wrote his boss, Fred Fielding, a memo reiterating his views that Congress could legally bar the use of busing as a school desegregation remedy. But he concluded that given his lack of success “it would probably not be fruitful to reopen the issue at this point.” Still, Roberts wavered on whether a ban on busing was good policy. In his 1984 memo to Fielding he wrote approvingly that the Department of Justice as a “matter of legislative policy” regularly argued in the courts that busing was “counter-productive.” But later, in another memo to Fielding in 1985, Roberts, while repeating his position that stripping the Supreme Court of jurisdiction over school desegregation was constitutional, said that he had thought banning busing was a bad “policy idea.”
In his views on court stripping, Roberts revealed a striking lack of interest in contemporary events. He adopted the unsupported finding that Helms and the Dixiecrats had placed in the voting rights bill, which held that busing as a desegregation remedy was a failure and led to white flight. He omitted to mention the fact that desegregation had spread throughout the South after the Supreme Court’s landmark 1971 “busing” decision in the Swann case, and that the first major report by the National Assessment for Educational Progress showed that the achievement gap between whites and African-Americans had been cut in half during the 1970s, with the greatest gains coming among third-grade black children, most of whom were bused in the now desegregated Southeast.
But it was in the second major civil rights battle of the early Reagan administration that Roberts, winner of an undergraduate history award at Harvard College, revealed a surprising ignorance of America’s racial past. The issue in 1981 was whether Congress should renew key provisions of the Voting Rights Act of 1965 and overturn a 1980 Supreme Court decision that threatened to undermine the gains that African-Americans were making in securing their right to vote.
The history of discrimination was unambiguous. Despite the guarantees of the Fifteenth Amendment, from the end of Reconstruction in the late nineteenth century through the early 1960s the states of the Old Confederacy kept black people from registering to vote by a variety of strategies. As the Supreme Court struck down one device after another for disenfranchising blacks as violating the Fifteenth Amendment, states replaced them with others, finally resorting to primaries limited to white people. These practices were reinforced by racial violence. Many local black leaders who were organizing people to vote were murdered by members of the Klan.
The barriers were largely effective. In Mississippi in 1960, fewer than 6 percent of eligible black citizens were registered to vote. After federal laws protecting blacks’ voting rights in 1957 and 1960 proved too weak to be effective, the civil rights movements of the 1960s helped to produce the Voting Rights Act of 1965. The new law contained special provisions allowing federal officials to take over the registration process if local officials continued to resist, and it called for a federal review of state laws that might limit black voting.
The 1965 Voting Rights Act brought about large gains in registration and voting by African-Americans. But they were still struggling with strategies designed to dilute the impact of their voting. This problem was compounded in 1980 by the Supreme Court’s 5 to 4 decision, in Mobile v. Bolden, which upheld the election of members at large of the Mobile, Alabama, City Council rather than by district, even though it effectively prevented black voters from having representation on the council. Because blacks were entirely barred from voting in 1911, when Mobile had enacted the at-large plan, the Court reasoned that the plan had not been motivated by race. The current impact on race, the Court decided, was not sufficient to show a violation. Since the special provisions of the 1965 act were up for renewal in Congress in 1982, civil rights advocates were seeking a reversal of the Supreme Court’s Mobile decision as well.
In the House in 1981 Republicans such as Henry Hyde of Illinois expressed their skepticism not only of the need to extend the special provisions of the Voting Rights Act, but of reversing Mobile v. Bolden as well. Meanwhile the Reagan administration equivocated, with the Justice Department apparently split. Documents show that John Roberts was one of the leading lawyers in the Justice Department fighting against any improvements in the Voting Rights Act. But something unexpected happened. As Henry Hyde listened to the testimony of black witnesses from the South who were suffering discrimination, he decided that something had to be done. At the end of July 1981, the House Judiciary Committee sent to the floor a strong bill for debate, including a reversal of Mobile, by a 25â€“1 vote. In October, with the help of other conservatives, the bill passed the House by a vote of 389â€“24.