Memos Portray Roberts as Conservative But Cautious

The Reagan Library has been releasing memoranda that Supreme Court nominee John Roberts wrote as a Reagan Justice Department aide from 1981-82 and assistant White House counsel from 1982-86.  They depict a lawyer of conservative views, who was sometimes cautious about implementing them. 

Critiquing the Supreme Court decision in Plyler v. Doe, which ordered states to provide a public education to illegal aliens:

“In sum this is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have.”

—Memo from Carolyn B. Kuhl and John Roberts, June 15, 1982

Citing the “abortion tragedy” in approving a letter from President Reagan to a group holding a memorial service for aborted babies:

“Nor do I have any objection to the President sending a message to the memorial service.  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.”

—Memo from John Roberts, Oct. 4, 2005

Attacking theory of “comparable worth” in determining wages for “women’s” jobs:

“It is difficult to exaggerate the perniciousness of the ‘comparable worth’ theory. It mandates nothing less than central planning of the economy by judges.”

—Memo from John Roberts, Feb. 3, 1982

Arguing that the first-term Reagan Justice Department had been wrong to conclude that the Constitution did not authorize Congress to restrict the jurisdiction of federal courts, but concluding that stare decisis might argue for letting the incorrect decision stand:

“After an exhaustive review at the Department of Justice I determined that such bills were within the constitutional power of Congress to fix the appellate jurisdiction of the Supreme Court, ‘with Exception, and under such Regulations as the Congress shall make.’  I also concluded that such bills were bad policy and should be opposed on policy grounds.  My views did not carry the day, however, and the Department issued an opinion … concluding that the above-quoted ‘Exemptions Clause’ did not mean what is said and that Congress could not restrict the appellate jurisdiction of the Supreme Court in constitutional cases.  The bills were, accordingly, opposed on constitutional grounds. I do not know if the new regime at Justice will adhere to the old opinion or revisit the issue. There is much to be said for the virtues of stare decisis in this area, and I think I would recommend that we adhere to the old misguided opinion and let sleeping dogs (an apt reference, given my view of the opinion) lie.”

—Memo from John Roberts, May 6, 1985