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Roberts’ solicitor general record gives clues to views

L.A. Times-Washington Post News Service

WASHINGTON – For many years, the solicitor general was known as the “10th justice,” a trusted figure who advised the Supreme Court on the law and whose client was the United States. But midway through the Reagan administration, the office took on a new role. The solicitor general became not just the government’s chief lawyer before the Supreme Court, but the point man for a conservative transformation in the law. When John G. Roberts Jr., then 34, joined Solicitor General Kenneth W. Starr as his top deputy in fall 1989, they were determined to make the Reagan Revolution a legal reality. Roberts “was in that position as the principal political deputy to the solicitor general because he was simpatico with the administration,” said Washington lawyer Charles J. Cooper, a longtime friend of the Supreme Court nominee. “He agreed with the thrust of what the administration was doing,” Together, Starr and Roberts for 3 1/2 years pressed a strongly conservative legal agenda. They argued for limiting the scope of civil-rights laws, ending race-based affirmative action, restoring some prayers to public schools and overruling Roe v. Wade, the case that established a woman’s right to have an abortion. They sought to make it harder for environmentalists to challenge the government in court. They intervened on the side of Operation Rescue to shield abortion protesters from being sued. And they joined Texas state lawyers in arguing that new evidence of a death-row inmate’s “actual innocence” did not entitle him to reopen his case in federal court. In the first right-to-die case to reach the Supreme Court, they intervened on the side of then-Missouri Gov. John Ashcroft to argue that state officials may keep a comatose woman alive over the objections of her family. “Ken Starr and John Roberts are genuine conservatives,” said Christopher J. Wright, a lawyer who worked under them at the solicitor general’s office. “They’re highly professional and excellent lawyers. But I’m a Democrat, and I can’t say I always agreed with them.” Roberts’ record at the solicitor general’s office under President George H.W. Bush has become the focus of attention for Senate Democrats. They have been studying 81 Supreme Court briefs signed by Roberts between 1989 and 1993, and have asked the White House to disclose the memos he wrote in 16 of those cases. But the White House so far has refused to provide the memos and other supporting documentation, claiming a lawyer-client privilege. As a result, Roberts’ legal philosophy during that highly politicized period can only be gleaned from the public files. They suggest a strongly, although not uniformly, conservative approach to issues. Unlike his position as a young assistant to Attorney General William French Smith in 1981 and 1982, Roberts’ post in the solicitor general’s office gave him the opportunity to try to reshape the law at the Supreme Court. When teamed with Starr, he was not shy about pressing sharply ideological positions in the court. The duty and role of the solicitor general was a subject of debate in the 1980s. Reagan’s first solicitor general, Rex Lee, quit in frustration, saying he was reluctant to “press the administration’s policies at every turn. … I’m the solicitor general, not the pamphleteer general.” The solicitors who followed Lee, including Charles Fried and Starr, were more willing to advocate the ideological views of the administration. In the Reagan and first Bush administrations, that meant urging the Supreme Court to overturn Roe v. Wade. In 1991, for example, when the court took up a free-speech challenge to an abortion regulation, Starr and Roberts filed a brief saying, “We continue to believe that Roe was wrongly decided and should be overruled.” The regulation at issue prohibited doctors and nurses at federally funded family-planning clinics from discussing abortion with their patients. The court later upheld the regulation in a 5-4 decision, but without discussing the validity of Roe v. Wade. The next year, Starr’s office intervened in a Pennsylvania dispute to urge the court again to overrule Roe. “The protection of human life – in and out of the womb – is certainly the most compelling interest that a state can advance,” Starr said. The Supreme Court rejected the advice, and, in a 5-4 ruling, said women may opt for an abortion during the first six months of pregnancy. The challenging of Roe – and the view at the solicitor general’s office of its proper role – was defended by Thomas Merrill, a Columbia University law professor, who worked under Starr and Roberts. “The president (George H.W. Bush) had campaigned for overruling Roe v. Wade. We in the office knew the administration’s position. It was only a question of how to go about achieving that objective,” he said. In 1991, Roberts personally argued a case along with lawyers for Operation Rescue. The protesters had been sued in Virginia over abortion-clinic blockades. The women who sued relied on the Ku Klux Klan Act of 1871, which made it illegal for several persons to conspire to deprive individuals of their rights. Roberts began by saying that he was not defending the actions of the protesters. Rather, he argued, the 19th-century civil-rights law did not apply to their conduct. The law only applied when people were singled out for discrimination, as blacks were by the klan, Roberts said. “Opposition to abortion is (not) the same as discrimination on the basis of gender,” he said, adding that it was “wrong as a matter of law and logic” to make such a claim. In a 6-3 decision, the court agreed with his argument in an opinion written by Justice Antonin Scalia. The lawyer who represented the women said the Bush administration lawyers should have stayed out of the case. “We were greatly bothered that the federal government was in this case on the side of Operation Rescue,” Deborah Ellis, a New York University law professor, recalled recently. “There is a right to abortion, and whether you agree with it or not, it is objectionable that women could be deprived of this right by force.” (The Supreme Court is set to hear a similar case this fall involving blockades at abortion clinics. Lawyers for the National Organization for Women won a lawsuit against leaders of Operation Rescue for using violence and threats against doctors and patients. The court will hear an appeal from the anti-abortion advocates, who say the federal extortion law does not apply to such protests.) Starr and Roberts also upset women’s-rights advocates in 1991 when they intervened on the side of a Georgia school district in a major test of Title IX, the law that bars sex discrimination in schools and colleges. Christine Franklin, a student, said she had been sexually harassed and abused by a popular coach, who was later dismissed. She sued the school district. Starr and Roberts urged the court to rule that the law does not give victims of sex discrimination a right to sue. The justices unanimously rejected that view. During their time together in the solicitor general’s office, Starr and Roberts helped win rulings that had broad effect across the United States. They joined a Nebraska case in which the court ruled that student-led Bible clubs had a right to meet at public schools. They joined a Minnesota case in which the court upheld state law requiring a parent be notified before the daughter had an abortion. And they joined an Oklahoma City case in which the court set the stage for ending long-running school busing programs. But Roberts was not always on the government’s side. He intervened in a Louisiana case to argue on behalf of an inmate, Keith Hudson, who had been beaten by two prison guards while shackled and handcuffed. Hudson sued the guards for violating his constitutional rights and won $800 in damages. But the U.S. Court of Appeals in New Orleans threw out the verdict and ruled that prisoners’ rights were not violated by abusive treatment that did not cause a significant and permanent injury. Roberts said he was troubled by the lower court’s ruling. While “frivolous” lawsuits from prisoners were a problem, this was not a frivolous case, he said. Nor, he told the court, should the law condone the “unnecessary and wanton infliction of pain” on prisoners. The Supreme Court agreed in a 7-2 ruling written by Justice Sandra Day O’Connor. Justices Clarence Thomas and Scalia dissented. Democrats on the Senate Judiciary Committee, which will hold hearings on Roberts’ nomination to the Supreme Court, have demanded to see the memos he wrote in several of the cases from his time in Starr’s office. They say they want to see how Roberts analyzed the law, and whether the administration’s position was also his. His friend Cooper, also a veteran of the Reagan administration, said it was fair to conclude that Roberts agreed in essence with the legal arguments he made on behalf of the first Bush administration – although “it would be wrong to conclude he agreed with every line in those briefs.” Within the Justice Department, Roberts was admired for his intelligence and modest manner. “My most distinct memory is that he played his cards close to the vest,” Merrill said. “I briefed him for his first two days there, and he nodded and smiled. He didn’t talk much. John never kicked back and philosophized about his view of the law.”


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